Findings Of Fact Until on or about December 22, 1978, respondent held petitioner James Alan O'Neal in custody at its Alyce D. McPherson School in Ocala. No question as to the validity of petitioner's initial commitment to respondent's custody arises in these proceedings. On or about December 22, 1977, respondent released petitioner to the Social Economic Services Group Home in Gainesville, Alachua County, on conditions set forth in a furlough agreement, which petitioner signed and which was received in evidence as petitioner's exhibit No. 8. The fourth numbered condition in the furlough agreement is that petitioner "[n]ot change or leave residence . . . or . . . county of residence without the consent of the counselor." Marty Richardson works for respondent as an intake counselor at the juvenile detention center in Daytona Beach. He first met petitioner at quarter of six one morning on or about March 19, 1978, shortly after petitioner had been arrested for breaking and entering. After Mr. Richardson gave petitioner Miranda warning, he heard petitioner admit that he had broken into a house in Volusia County and stolen drugs from the house. Frank Lynch, employed by respondent as a probation aftercare counselor in Gainesville, testified without contradiction that no counselor gave his consent for petitioner to leave Alachua County.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's revocation of petitioner's furlough be upheld. DONE and ENTERED this 14th day of August, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph E. Hodges, Esquire 3rd Floor, Oak Park Executive Square 2002 N. W. 13th Street Gainesville, Florida 32601 James O'Neal Alyce D. McPherson School Post Office Box 1359 111 S. E. 25th Avenue Ocala, Florida 32670
The Issue The issue in this case is whether Petitioner should be exempt from disqualification for employment pursuant to Section 435.07(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a position for which an exemption is required pursuant to Sections 435.06 and 436.07(1). Petitioner seeks the exemption to operate a day care service out of her home. Petitioner is an employer and an employee within the meaning of Sections 435.02(1) and (2). Petitioner operates an unlicensed day care center from her home and employs at least one other person to assist her in providing day care for an undetermined number of children. Respondent is the licensing agency defined in Section 435.02(3). Petitioner has provided day care services for parents in the neighborhood on an intermittent basis from 1979 through the present. Petitioner has provided day care services to some parents gratuitously while other parents have paid for day care services. Parents who have paid for day care services have paid according to their means. No evidence established a fee schedule for day care services. Petitioner knows she is required to obtain a license in order to operate a day care business. In 1987, Petitioner obtained such a license but allowed that license to expire. On October 27, 1993, the Orange County Sheriff's Office charged Petitioner with aggravated child abuse in violation of Section 827.03, Florida Statutes (1993) ("Section 827.03"). Violation of Section 827.03 is a felony which disqualifies Petitioner from employment pursuant to Sections 435.03(2)(x) and 435.04(2)(x). The state attorney reduced the charges against Petitioner to a first degree misdemeanor charge of child abuse. Petitioner entered a plea of nolo contendere to the misdemeanor charge in Case Number MO 93-17467. The court withheld adjudication of guilt, placed Petitioner on supervised probation for six months, required Petitioner to pay fines and costs of $115, and required Petitioner to complete a parenting program. Petitioner satisfied the terms of her probation, although Petitioner did not do so in a timely manner. Petitioner missed at least one meeting with her probation officer and required additional time to pay the fine and court costs. Sometime in February 1999, Petitioner applied for a license from Respondent to operate her existing day care service. Respondent denied the application on the basis of the 1993 misdemeanor charge. On February 25, 1999, Petitioner requested an exemption from disqualification. Respondent denied the request for exemption, and Petitioner requested this hearing. Sufficient time has elapsed since the incident within the meaning of Section 435.07(3). Approximately six years have elapsed since the incident. The nature of the harm caused to the victim was significant. On October 17, 1993, Petitioner administered corporal punishment to her eight-year-old biological grandson using a telephone cord. The punishment left two open wounds above and below the left knee and a raised looped bruise on the leg. The wounds and bruises were visible to the arresting officer on October 27, 1993. The nature of the harm to the victim was not life threatening and did not require medical treatment. School officials observed the injuries to the victim and reported them to the Sheriff's Office. Petitioner denies that the open wounds observed by the arresting officer were caused by the incident. Petitioner claims the open wounds were caused during an accident at play. However, resolution of that factual issue is not necessary in order to determine whether Petitioner is entitled to an exemption. A more important issue is whether the incident was a single isolated incident or a common practice by Petitioner. On that issue, there is conflicting evidence. The Charging Affidavit alleges that the victim claimed Petitioner routinely "whipped" the victim, his brother, and his sister with a telephone cord. Petitioner denies she disciplined any of her grandchildren with anything but her hand other than the one incident at issue in this proceeding. Petitioner claims that the incident arose from her frustration over recurring teacher complaints to Petitioner that the victim was disrupting classes and not performing in school and over Petitioner's inability to correct the victim's misbehavior after repeated attempts to address the situation without spanking the victim. The factual issue is resolved by the testimony of the mother of the victim and the testimony of other mothers who entrust the care of their children to Petitioner. The mother of the victim is the mother of the victim's brother and the victim's sister and also is Petitioner's biological daughter. The mother testified at the hearing that the incident in 1993 was the only time Petitioner had disciplined her children with anything but a minor hand slapping. The mother's testimony was credible and persuasive and consistent with the testimony of other mothers who have entrusted, and continue to entrust, the care of their children to Petitioner. There is no evidence that Petitioner has ever disciplined any child unrelated to Petitioner. Petitioner demonstrated sufficient evidence of rehabilitation since the incident in 1993. After Petitioner completed the parenting course required by the terms of her probation, Petitioner continued her education in child care. She completed three courses given by Respondent and earned 33 credit hours. Petitioner completed courses in "Fundamentals of Child Care," "Developmentally Appropriate Practices for Young Children," and "Introductory Child Care Training Courses." Petitioner demonstrated sincere remorse for the 1993 incident. Petitioner also demonstrated an awareness of the emotional harm caused, her importance to young children in her care, and an adequate awareness of appropriate parenting for children while they are in her care. Petitioner continued to care for the victim after 1993 without further incident. The mother of the victim and the mothers of other children continued to entrust the care of their children to Petitioner after the incident. The testimony of these mothers was consistent, credible, and persuasive. Petitioner has repaired her relationship with the victim. Both have learned to accept responsibility for their actions. The victim is now a well-adjusted young man who loves his grandmother and enjoys spending time with her. Counsel for Respondent exposed several inconsistencies in Petitioner's testimony with the intent to discredit Petitioner's testimony. Those instances are a matter of record and not addressed individually in this Recommended Order. After hearing the testimony of the mothers at the hearing, it is unlikely that Petitioner intended misrepresent the facts. It is more consistent with the testimony of the mothers at the hearing to find that the discrepancies in Petitioner's testimony resulted from Petitioner's lack of knowledge and business acumen rather than from her lack of good faith. Counsel for Respondent made much of the fact that Petitioner has operated, and continues to operate, an unlicensed day care center out of her home. Counsel noted in the record that the letter denying Petitioner's application for a license provides Petitioner with notice that the operation of an unlicensed day care business is a misdemeanor. Petitioner acknowledges this fact but claims that the day care center is her only means of financial support and the only affordable alternative for working parents who utilize her service. The issue of whether Petitioner currently operates an unlicensed day care center must be addressed in a separate proceeding if Respondent chooses to do so. Respondent must separately charge Petitioner with operating an unlicensed day care center, give Petitioner adequate notice of the charge, give Petitioner a point of entry, and provide Petitioner with a reasonable opportunity to defend the charge. Respondent cannot raise that charge for the first time in this proceeding as a ground for denying the exemption requested pursuant to Section 435.07(3) and effectively transfer the burden of proof to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's request for exemption. DONE AND ENTERED this 20th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1999. COPIES FURNISHED: John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Samuel C. Chavers, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Orlando, Florida 32801-1782 Annie Bell 2218 Nantes Court Orlando, Florida 32808
The Issue The issue is whether The Unlimited Path, Inc. (“The Unlimited Path”) committed an unlawful employment practice against Constance K. Gatewood by denying her a reasonable accommodation and/or by demoting her from her position as Program Director at Jackson Correctional Institution.
Findings Of Fact The Parties The Unlimited Path contracts with the Florida Department of Corrections (“DOC”) to provide residential substance abuse counseling and re-entry services to inmates on prison grounds. The Unlimited Path has been operating since 1994 when it had 30 to 50 employees. Today, The Unlimited Path has 280 employees and operates at 20 to 24 institutions within Florida. DOC is The Unlimited Path’s primary source of revenue. If The Unlimited Path is not satisfying its contractual obligations, then DOC can terminate the contract. Therefore, it is imperative that The Unlimited Path satisfy its contractual obligations. In order to ensure that The Unlimited Path is satisfying those obligations, DOC and the Department of Children and Families (“DCF”) conduct periodic reviews of The Unlimited Path’s substance abuse programs. The contract between DOC and The Unlimited Path is comprehensive. For example, one provision requires that The Unlimited Path comply with the Americans with Disabilities Act (“the ADA”). Another provision empowers DOC to prohibit The Unlimited Path from employing a particular person at a DOC facility. Bertrand Randolph is the President of The Unlimited Path and performs all of the functions typically associated with a chief executive officer of a corporation. Mr. Randolph’s wife, Sheila Randolph, is the Executive Director of The Unlimited Path, and her duties include overseeing the operations and policies of the entire corporation. Ms. Randolph also writes The Unlimited Path’s bids. Ms. Gatewood has worked in prison-based substance abuse treatment programs since 2005. She is a master’s level certified addiction professional or a “CAP”. As a CAP, Ms. Gatewood is qualified to operate a substance abuse program. The Unlimited Path hired Ms. Gatewood on September 20, 2011, to work as a clinical supervisor at the Walton Correctional Institution (“Walton CI”). One piece of documentation associated with Ms. Gatewood’s hiring asked her to disclose whether she suffers from various medical conditions such as epilepsy, diabetes, or heart disease. With regard to a category on that document entitled “other,” Ms. Gatewood noted that she experiences “[a]llergies to certain foods, chemicals, perfumes, other odors plus dyes.” However, she responded negatively to a question asking if she had ever “received a disability rating or had one assigned . . . by an insurance company or state/federal agency.” On an “Emergency Contact Information Sheet,” Ms. Gatewood disclosed that she is allergic to several foods and substances such as aspirin, sulfides, chemicals, perfumes, colognes, seafood, pork, strawberries, nuts, chocolate, red dye, and yellow dye. Ms. Gatewood also noted on the aforementioned form that she has asthma and is sensitive to extreme hot or cold conditions. However, the disclosures described above did not present a complete picture regarding the severity of Ms. Gatewood’s allergies. Specifically, those disclosures did not indicate that Ms. Gatewood’s allergies could be life- threatening. A letter dated October 7, 2003, from Dr. Mark H. Kalenian of Alabama Asthma & Allergy, P.C. presented a comprehensive description of Ms. Gatewood’s allergies and described how they could be life-threatening: The above referenced patient is a 52 year old black female initially seen on 9/13/2001 and last seen on 4/1/2003. Her diagnoses include allergic rhinitis, asthma, dermographic Urticaria, Urticaria/angioedema, and multiple drug allergies. She breaks out in hives and can get facial swelling when ingesting MSG, scupper dines, vanilla ice cream, red #40 and yellow #5 dyes, shellfish, and Advil-related anti-inflammatory drugs. Her main problems that may affect her work are smoke, chemicals and/or perfumes which trigger sinus allergy type symptoms, lip swelling, dizziness, shortness of breath, and anaphylaxis (a potentially life- threatening reaction). These potential exposures to smoke, cologne, perfume, scents or chemicals, extreme hot/cold air, polluted air at work whether in the air or on co-workers could potentially trigger a severe allergic, asthmatic or anaphylactic reaction, which could send her to the emergency room, close off her airway and drop her blood pressure and be potentially life threatening. She should work in a clean air environment, away from co-workers who smoke or wear scented lotions or perfumes, away from polluted air and away from extremes of hot or cold. Avoidance is the best treatment for her, although she needs to continue on all asthma and allergy medications. Please consider implementing a policy of no perfume/cologne or strong scents worn on trainees, and people should smoke outside. As discussed in more detail below, Ms. Gatewood did not share the above-referenced letter with The Unlimited Path until April of 2015.2/ Ms. Gatewood’s Tenure at The Unlimited Path Prior to July 2015 During her tenure with The Unlimited Path, Ms. Gatewood has worked as the Program Director of substance abuse rehabilitation programs at three different DOC facilities: Lowell CI, Jackson CI, and the Northwest Florida Regional Annex. At The Unlimited Path, a program director is responsible for all aspects of a treatment program at a DOC facility. Ms. Gatewood’s allergies became well-known to those who worked around her. Any sort of strong scent presented a problem. For example, Ms. Gatewood’s co-workers could not heat fish in a microwave because of the resulting aroma, and they could not use hand soap. There is no dispute that The Unlimited Path’s management (prior to November of 2014) properly addressed any complaints made by Ms. Gatewood. According to Ms. Randolph, “any time there was a concern, we would address it with the employee or the site by holding a staff [meeting], requesting that people refrain from heavily scented products. I mean, we – we even allowed for there to be some cleaning schedule changes at sites to accommodate her allergies. So we tried very hard to respect the fact that she was sensitive.” The Unlimited Path also allowed Ms. Gatewood to set the standard for soap in the bathrooms. Nevertheless, Ms. Gatewood’s allergies were an issue throughout her tenure at The Unlimited Path. As explained below, Ms. Gatewood cites three instances in which The Unlimited Path allegedly ignored requests from her for a reasonable accommodation within the meaning of the ADA. In other words, Ms. Gatewood alleges that The Unlimited Path began ignoring her requests for a reasonable accommodation in November of 2014. The Unlimited Path began operating a substance abuse rehabilitation program at Jackson CI in January of 2014, with Ms. Gatewood as the Program Director. In approximately November of 2014, counselors under Ms. Gatewood’s supervision were wearing scented products, and the aromas from those scented products were being transferred to documents that Ms. Gatewood had to review in her capacity as Program Director. As a result, Ms. Gatewood experienced allergic reactions and began leaving documents in filing cabinets overnight in order for the scent to dissipate. On November 5, 2014, Ms. Gatewood addressed the following e-mail to Sheila Randolph: This message is to seek advice regarding employees that continue to wear scented products in the workplace which is creating complications because the paperwork is extremely saturated with perfume/cologne/aftershave/lotion scents so strong that I am experiencing allergic reactions signing the paperwork. I have addressed this issue in staff meeting[s], however, it seems not to matter with certain staff. Ms. Russell’s entire caseload charts were so strongly scented today, I asked Ms. Dandridge to place them in the file cabinet because my system could not tolerate the smell nor could I continue signing off on the individual sessions. I became very ill and had to go outside to get fresh air in order to breathe. Also, I know you want me to provide leadership training to Mr. Bell, however, the scented aftershave and hand product he wears makes it extremely difficult for me to interact in close proximity with him, and sign his paperwork. Today, I mentioned to him that I was experiencing an allergic reaction and my eyes were stinging so badly I could not sign his chart. Later I overhead him say “if someone is that sensitive this is not the environment to work in.” At this point, I am unable to perform the duties of my job due to these strong scents that I am affected by smelling and touch. There is a DOC policy that addresses strong scents in the workplace. I don’t want the closed charts to arrive in Tallahassee smelling like a perfume factory, and lastly these scents are very attractive to the inmates. On April 9, 2015, Ms. Gatewood addressed the following e-mail to her immediate supervisor, Amie Bishop: At your earliest convenience I need to speak with you regarding two issues that involve Counselor Karlicia Rogers. Scented products in the workplace that has been address[ed] in the past. She is now wearing heavily scented hand products when completing documentation. Documentation deficiencies regarding three charts that were not countersigned when the client was enrolled into the program, and correcting my documentation in the chart. Later that day, Ms. Gatewood transmitted another e-mail to Ms. Bishop and copied Sheila Randolph. Within the e-mail, Ms. Gatewood expressed an issue regarding Mr. Bell. However, she also referred to the ADA: Yesterday, after Staff Meeting, I considered Mr. Bell’s behavior inappropriate. In front of staff members, he made a comment regarding Ms. Chavers who was not present in the room at the time. He said, “If you are that sensitive you don’t need to be working here.” This was regarding an incident earlier during staff meeting when Ms. Rogers reported information she overheard from Ms. Chavers’ group and (Ms. Rogers) said she wanted clarification. Ms. Chavers thought Ms. Rogers was targeting her and told her so during the meeting. Ms. Rogers explained that she was not targeting her, and after numerous attempts to convince her she was not being targeted, Ms. Chavers excused herself and left the meeting. It was [about] time to go, I went to look for Ms. Chavers, and did not feel the need to keep Mr. Bell overtime to address his behavior. However, this morning, I advised Mr. Bell that I overheard the remark and wanted to address it with him. I mentioned that in the past I overheard him make the same remark about me when he thought I was out of the room (re: scented products in the workplace, and allergic effect it causes me). I further mentioned that I was surprise[d] he would commit the very same act after having been talked to by the Corporate Office. He remembered the incident stating Ms. Clark had advised him not to wear scented products in the workplace, however, she agreed with him regarding his opinion that if I was that sensitive, I did not need to be working here. He further stated that she did not know that I was still upset by the incident, and he began to apologize profusely. I emphasized to him that I was not still upset about that incident. However, my concern is the comment is totally inappropriate in the workplace because of the following reasons: (1) the forum in which he made the comment. The person he was talking about was not present, (2) the possibility of influencing staff members present to feel the same way he does which creates tension in the workplace, (3) in my situation, it is essential to recognize the Americans with Disabilities Act, (4) re: Ms. Chavers it was inappropriate for him to say where she can work, and (5) he continues to make this comment in total disregard of the effect. Hopefully, Mr. Bell will not continue this behavior, however, I do want to keep you in the loop. (emphasis added). Ms. Randolph responded to Ms. Gatewood via e-mail on April 9, 2015, by stating that, This is the first time I’ve heard you make mention of ADA for your condition. We have never gotten any medical documentation from you regarding special accommodations for your sensitivities and yet, we have continued to be supportive of your allergies and the needs you have regarding scents and strong odors. If you are stating that you have a condition covered under the ADA, we need documentation in support of that so that we can explore our responsibilities in that regard further. Via an e-mail dated April 16, 2015, Ms. Gatewood responded to Ms. Randolph’s request by attaching a note dated April 15, 2015, from Dr. Kalenian recommending that Ms. Gatewood have a fragrance free environment due to asthma and chemical sensitivity. Ms. Gatewood also attached Dr. Kalenian’s October 7, 2003, letter that was quoted above in paragraph number 14. In addition, Ms. Gatewood reiterated in her April 16, 2015, e-mail that “the current source of issues for me is when counselors use heavily scented hand products when handling inmates’ charts that I am required to countersign as the Qualified Supervisor.” To the extent that Ms. Gatewood’s November 5, 2014, e-mail amounts to a request for a reasonable accommodation within the meaning of the ADA, her subsequent e-mail on April 9, 2015, indicates that The Unlimited Path addressed her concerns regarding Mr. Bell’s use of scented aftershave. Moreover, The Unlimited Path conducted a staff meeting at some point between November 5, 2014, and December 25, 2014, at Jackson CI and trained the staff members on workplace grooming etiquette and being sensitive to co-workers’ allergies. To the extent that Ms. Gatewood’s April 9, 2015, e-mails amount to requests for a reasonable accommodation within the meaning of the ADA, The Unlimited Path mandated in May of 2015, that female staff members at Jackson CI no longer wear scented lotions. In addition, The Unlimited Path prohibited liquid soap in the bathroom at Jackson CI. To the extent that any of the e-mails discussed above amount to requests for a reasonable accommodation within the meaning of the ADA, the greater weight of the evidence demonstrates that The Unlimited Path took appropriate actions to satisfy those requests. Aside from the issues regarding her allergies, Ms. Gatewood’s tenure at The Unlimited Path has been marked by difficulties with DOC. For example, Ms. Gatewood did not have a good working relationship with the assistant warden of programs at Lowell CI when she was the Program Director there. As a result, Ms. Randolph encountered resistance when she sought permission from DOC to transfer Ms. Gatewood from Lowell CI to Jackson CI. Margaret Agerton, the Assistant Bureau Chief in DOC’s Bureau of Programs, felt as if The Unlimited Path was transferring a problem from one place to another. Nevertheless, Ms. Agerton approved the transfer with the caveat that this would be the last one. Events Leading to Ms. Gatewood’s Demotion On June 2, 2015, Ms. Gatewood requested leave from Thursday, July 16, 2015, through Friday, July 24, 2015, and her request was approved the next day. Because DCF is responsible for licensing and regulating substance abuse and mental health facilities throughout Florida, Michael Van Bebber of DCF arrived on July 23, 2015, at Jackson CI in order to conduct an audit. The Unlimited Path had received advance notice approximately two weeks beforehand. At the time of the audit, Jackson CI was treating 68 inmates. Even though Mr. Van Bebber considers The Unlimited Path to be one of the highest performing substance abuse providers that he reviews, he was disturbed by the state of the treatment program at Jackson CI. Three counselors employed by The Unlimited Path at Jackson CI had resigned within the previous week, and there were not enough counselors for the 68 people receiving treatment. In addition, Mr. Van Bebber considered the treatment facility to be too small for the number of people in the program. In his opinion, the facility was overcrowded, and the overcrowding caused the inmates to be extremely agitated. Mr. Van Bebber felt unsafe and locked himself in an on-site office. With regard to the overall functioning of the program at Jackson CI, Mr. Van Bebber concluded that The Unlimited Path was not performing at the level he would expect from an established provider of residential treatment programs. In fact, The Unlimited Path almost got a warning that could have resulted in the loss of its license at Jackson CI. Because Mr. Van Bebber considered DOC to be equally responsible for the problems at Jackson CI, the warning was not issued.3/ At the time of the audit, Michael Dozier worked for The Unlimited Path, and he substituted as the Program Director at Jackson CI during Ms. Gatewood’s vacation. Mr. Dozier has over 25 years of experience with prison residential treatment communities. He is recognized as an authority on residential treatment programs/communities. Upon arriving at Jackson CI, Mr. Dozier spoke to The Unlimited Path’s staff members and estimated that 50 percent of those to whom he spoke were looking for another job. As Mr. Dozier examined the physical area housing the substance abuse treatment program, he noticed that the facility was unclean and that many of the inmates were disheveled in appearance. This indicated to Mr. Dozier that there was a lack of structure and accountability. On July 23, 2015, Mr. Dozier wrote a memo to the “Executive Leadership” of The Unlimited Path recommending the “immediate removal” of Ms. Gatewood as the Program Director of Jackson CI: First, let me start by saying I have spent the past week evaluating the strengths and weaknesses of our Jackson CI RTC with hopes of identifying the direct cause of high staff turnover, staff resignations without notice, high staff dissatisfaction, and high levels of inmate frustration. During my review, I was very discouraged by what I found. The program space was very dirty with trash cans overflowing, negative graffiti on the walls, chairs disorganized in group space, and counseling offices discombobulated. I also noticed heavy layers of dust and spider webs in the windows [along with] hanging poster paper with inappropriate writing on them. As I focused my attention on the program, I quickly realized that there was no structure in the program. There appeared to be no accountability when it came to community expectations. [R]esidents were walking around with their shirts out, failing to wear their ID, using abusive language and consistently giv[ing] the staff negative feedback when being directed. After speaking to several structure members, I received the following feedback: the last structure meeting was held over three months ago, staff is not assigned to departments, there are no department meetings, no visual display of assigned structure positions and no systems for behavior management/behavior shaping. It was very disappointing to witness the disarray in Morning Meeting and Wrap-up. [T]hose meetings had no structure or desired outcome and residents expressed no trust of the environment. It was clear that staff had been receiving little to no direction from the program director when it came to managing the community and creating program expectations. During my interviews with staff, it was apparent that the director spent most of the time being punitive towards staff focusing on issues such as the way they wore their hair, what they [were] wearing, what lotion they were using and what deodorant they had on. It was also reported that the director would always make negative comments about the corporate office, negative comments about other employees, and a clear dissatisfaction with the contract manager. [S]taff also stated that if they complained about anything the director would defiantly retaliate against them using their request[s] for time off, [the] dress code, clinical files, or [by assigning that staff member to] the difficult clients that week. I was clearly concerned about the staff morale, lack of leadership and the poor client satisfaction I heard over the past four days. As you know, the program director has to be seen as the ultimate role model in the Therapeutic Community. Based on my findings, I am recommending the immediate removal of the Program Director. On July 27, 2015, The Unlimited Path removed Ms. Gatewood from her position as Program Director at Jackson CI and reassigned her to a counselor position at the Northwest Florida Regional Annex. A memorandum signed by May-Li Clark, Ms. Gatewood’s immediate supervisor at the time, explained why Ms. Gatewood was demoted: During the dates of 7/21/15 – 7/23/15, while Mr. Dozier, State Director, was onsite at Jackson CI’s RTC, several issues were noted that clearly reflect lack of leadership within the program. The following issues were noted: No structure within the program; last structure meeting was held over three (3) months ago, no staff assigned to the departments within the community; department meetings with the community were not being held, no visual display of assigned structure position; and no system for behavior management/behavior shaping within the program. Morning Meetings and Wrap-Up Meetings were unorganized with no desired outcome. There was no accountability in regards to community expectations as the inmate/clients were not in Class A uniform, did not have ID’s, were allowed to use profane language and did not follow staff directives. It was apparent that the inmate/clients were experiencing a high level of frustration. Additionally, the inmate/clients expressed no trust within the treatment environment. The memorandum also held Ms. Gatewood responsible for a high amount of turnover among counselors at Jackson CI: Between the dates of 7/17/15 – 7/22/15, two staff members quit without notice and one staff member was escorted off the compound by Jackson CI Administration. In addition to the immediate staff turnover concerns, it has been noted that the program at Jackson CI has experienced a high level of staff turnover since The Unlimited Path took over operations of the program. Issues that were noted which have been the main contributing factors to staff turnover include: 1) program space (staff work space) was unsanitary with trashcans overflowing, layers of dust and spider webs in the windows, disorganization of program and office space, negative graffiti on the walls and hanging poster paper with inappropriate writing on them; (2) staff receiving little to no direction from the program director regarding program structure, creating and managing program expectations and minimal training regarding clinical file documentation; and 3) fear of retaliation when speaking of concerns or seeking assistance. Ms. Gatewood signed the memorandum but noted that she did not agree with its contents and would challenge the decision.4/ Since the end of July 2015, Ms. Gatewood has been working as a Counselor at the Northwest Florida Regional Annex. As a Counselor, Ms. Gatewood does not have to handle the paperwork of other counselors. The greater weight of the evidence does not demonstrate that Ms. Gatewood’s demotion was retaliation for her repeated complaints about co-workers being insensitive about her allergies. In other words, The Unlimited Path had valid reasons for demoting Ms. Gatewood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Constance K. Gatewood’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of June, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2017.
Findings Of Fact Petitioner, Jean Colden (Colder), was employed full time by Respondent, Department of Corrections (Department), as an Accountant II at Broward Correctional Institution. The evidence establishes that Colden was absent without authorized leave on three consecutive workdays, to wit: October 1-3, 1985. At no time did Colden notify the Department of her intention not to appear for work on those dates, and at hearing she offered no explanation for her absences. By certified letter dated October 4, 1985, return receipt requested, Colden was advised that her absence from work since October 1, 1985, was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised Colden of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Colden timely petitioned the Department of Administration for review On November 5, 1985, he Department of Administration accepted Colden's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.
The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2014.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his alleged disability.
Findings Of Fact Respondent, John G's Restaurant, Inc., has operated a restaurant located at 10 South Ocean Boulevard, Lake Worth, Florida, since 1973. Respondent began as a small business owned by John Giragos, Sr., and was essentially operated by his family including his children, Wendy Giragos Yarbrough; John "Jay" Giragos, Jr.; and Keith Giragos. In 1993, John Giragos, Sr., transferred ownership of John G's to Wendy Giragos Yarbrough, Jay Giragos, and Keith Giragos, and the restaurant has grown to the point where it now employs approximately 40 employees, a significant percentage of whom are minorities. Petitioner, Oswald Norton, worked as a cook at John G's for 12 years from October 1991 through March 20, 2003. His typical day included working the grill in the morning and the broiler in the afternoon. Petitioner was known as a hard-worker at John G's. Petitioner was known to have a strong temper on the job. On several occasions over the years Petitioner had outbursts directed at his fellow employees. Keith Giragos stepped in on many occasions to calm Petitioner down when he was having an emotional outburst in the kitchen. On March 20, 2003, Petitioner cooked breakfast, but was not feeling well in the afternoon. Petitioner sat on a stool in the kitchen because he felt dizzy and lightheaded. Petitioner believes he had told John "Jay" Giragos, Jr., that he had not been feeling well for two weeks, had blurred vision, was dizzy from time to time, and was on a restricted diet. Jay Giragos did not like his employees sitting down on the job and commented on this to Petitioner. Petitioner either threw or dropped forcefully a large bag of frozen french fries on a table in the kitchen and yelled at several employees who were working in the kitchen at the time. French fries spilled out of the bag and were on the table and the floor. Jay Giragos told Petitioner that he should "get the [expletive] out of the kitchen and go drive a truck." Petitioner clocked out of the restaurant and went home. In telling Petitioner to leave and go drive a truck, Jay Giragos meant he should go home and calm down. Mr. Giragos never told Petitioner explicitly that he was fired from his job. Petitioner was scheduled to work the following day, Friday, March 21, 2003, as well as Saturday, March 22, 2003, and Sunday, March 23, 2003. He then had Monday, March 24, 2003, and Tuesday, March 25, 2003, off. Petitioner failed to report to work on Friday, Saturday, or Sunday, as scheduled, and failed to call John G's to advise he would not be reporting to work. Accordingly, he was a "no-show, no-call" for three consecutive days following the March 20, 2003, incident. In the past, when he was ill, Petitioner either told his employer he would not be coming in the next day or he called from home to say he was ill. Jay Giragos knew that Petitioner usually suffered from one cold every year since he had been working at the restaurant. On March 25, 2003, Petitioner visited his physician, Susan Barish, M.D. At that visit, Petitioner was diagnosed for the first time as a diabetic. The parties stipulated that prior to March 25, 2003, neither Petitioner nor anyone at John G's had any knowledge of Petitioner's diabetes. The owners of John G's first learned of Petitioner's diabetes when he arrived at the restaurant on March 26, 2003. Respondent has a long history of accommodating its employees who suffer either from a disease or disability, or who require accommodation due to pregnancy. On March 26, 2003, rather than reporting to work at 6:00 a.m. as scheduled, Petitioner arrived mid-morning with his bundle of uniforms and asked for his paycheck. At this time, Petitioner informed everyone that he was suffering from diabetes. Petitioner claims that he asked for his job back, but none of Petitioner's owners recall his asking to be re-hired. After his absence on March 21-23, 2003, Jay Giragos was not interested in retaining Petitioner, even though he had not yet hired a replacement cook. According to Dr. Barish, Petitioner has obtained good control of his diabetes with oral medication and diet. Dr. Barish believes that Petitioner is not restricted from working as a cook or in any other occupation. Petitioner remained unemployed until October 2003, at which time he opened his own restaurant, which remained in business for eight months. During the time that he was unemployed, Petitioner lost about $13,000 in pay based upon his salary at John G's. Petitioner is currently employed as a cook at Flix Restaurant working 39.5 hours per week cooking breakfast and lunch, and performing essentially the same duties as he had performed at John G's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 F. Dean Hewitt, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. Post Office Box 4940 Orlando, Florida 32802-4940 Stewart Lee Karlin, Esquire Law Offices of Stewart Lee Karlin, P.A. 500 West Cypress Creek Road, Suite 230 Fort Lauderdale, Florida 33309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Recommendation There are factors in mitigation which should be considered in this case to include the following: Carlson and Benedict had personal reasons for discrediting Beach and their actions show their anamosity toward her. The events which constituted the majority of the charges against Beach happened over one year before the Report was made to the Florida State Board of Nursing by Carlson. Beach worked at Lancaster Youth Development Center approximately seven years. She received good efficiency ratings for her employment from Carlson and Benedict for the period of time covered by the allegations relating to employment of unlicensed persons and unauthorized administration of medication, although, if their testimony is believed, they had knowledge of these matters. The testimony of the witnesses is largely unsupported by any physical evidence with the exception of the testimony of Rollings, whose testimony was rejected because of the changes which she had made from her original statements. Beach called and obtained authority to administer valium to a rape victim, who under any reasonable interpretation of the Department of Health and Rehabilitative Services policy, was entitled to treatment at the infirmary. Having sought authority to administer valium under these circumstances, it is difficult to conclude that she would have administered valium or any other prescription drug to Rollings or Campbell without obtaining authority. Based upon the foregoing findings of fact, conclusions of law, and factors in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing take no action against the license of Adeline Beach. DONE and ORDERED this 31st day of May, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire Florida State Board of Nursing 1107 Blackstone Building Jacksonville, Florida 32202 Smith and Johnson Post Office Box 508 Gainesville, Florida 32602
The Issue The issue to be resolved in this proceeding is whether there is cause for termination of employment of John Abbott with the employer, Escambia County School Board.
Findings Of Fact The Respondent, John Abbott was employed as a maintenance mechanic helper by Petitioner, the Escambia County School Board. As part of his employment, the Respondent resided in a mobile home at Hallmark Elementary School, 115 South "E" Street, Pensacola, Florida. On or about June 5, 1996, Pensacola police officers received confidential information that John Abbott was growing marijuana at his residence. Police officers went to the trailer and were allowed to enter with the permission of Mr. Abbott's 15-year-old son who also resided in the trailer. Mr. Abbott arrived shortly after the officers arrived. The officers inquired as to the presence and location of marijuana in the trailer. Mr. Abbott told the officers there were marijuana plants in the closet in his bedroom. The officers completed a consensual search of the closet and seized approximately 20 marijuana plants that were growing inside the bedroom closet. The officers also seized marijuana seeds and cardboard planters. The Respondent admitted he knew the marijuana was in the bedroom closet. The marijuana actually belonged to a girlfriend who had left town a few days previous. However, Respondent acknowledged he allowed the marijuana to be brought into his trailer and stored in his bedroom closet. Respondent knew it was there for several days and had taken no action to remove the marijuana from his property. Respondent clearly was in possession of marijuana on school property. Mr. Abbott was arrested for possession of marijuana. Eventually, he entered a plea of no contest to the charge and successfully completed his sentence. When the school board learned of Mr. Abbott's conviction, they terminated his employment with the school board. Mr. Abbott had no prior disciplinary problems. Respondent was considered a good employee by his supervisor. Respondent's supervisor requested that he remain a school board employee and not be terminated. However, at all times material to this action the Escambia County School District has had in force a Drug Free Work Place Program as authorized under Chapter 440, Florida Statutes. The Escambia County School District has also had a policy and practice of zero tolerance for possession and use of controlled substances. Respondent's possession of marijuana violated the Board's policy. The District has consistently terminated employees found in possession of controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed. Given the Board's policy and enforcement of its Drug Free Work Place Program, the evidence demonstrates that the Superintendent's recommendation for termination of Respondent should be upheld.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That a Final Order be entered by the Petitioner, Escambia County School Board terminating the employment of John Abbott. DONE AND ENTERED this 25th day of June, 1997, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: John T. Abbott 115 South "E" Street Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1997. Pensacola, Florida 32501 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 323990-0400 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470
The Issue Whether Respondent, a place of public accommodation, violated Chapter 760 and Section 413.08, Florida Statutes (2006), by failing to accommodate Petitioner, an individual with a disability.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner, Ricky Krell, is physically disabled and entitled to the protection of the Florida Civil Rights Act. Respondent is the owner of Dustin's Barbeque, which is a structure for public accommodation. On June 5, 2007, Petitioner, accompanied by his wife and his service dog, Zsa-Zsa, visited Respondent restaurant for the purpose of eating therein. Petitioner and his wife were seated and ordered their meal without incident. Zsa-Zsa was on a leash which was several feet in length, long enough to allow the dog to "sniff" other customers and food. Zsa-Zsa began "sniffing" contiguous customers and their food. The lease was stretched across the aisle between tables. On one occasion, a waitress almost tripped over the leash. Respondent's employees, who were familiar with service dogs having been in the restaurant, opined that the dog did not conduct itself as a trained service dog. As a result of the dog's activities and concern for the health and safety of other customers and employees, Respondent's on-site manager requested that Petitioner control the dog. Petitioner was unwilling or unable to control the dog, and the dog's inappropriate conduct continued. As a result, the manager asked Petitioner to take the dog outside. Petitioner would have been able to complete his meal if he had been able to control the dog or he had opted to take the dog outside and return to his meal without the dog. Petitioner refused the request to take the dog outside and became loud and used profanity. Petitioner finished his meal. The request that Petitioner remove the dog from the restaurant was reasonable under the existing circumstance and did not reflect a discriminatory act against Petitioner. The City of Melbourne police were called and when the officer arrived, she issued a trespass warning to Petitioner and his wife.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katherine Hurst Miller, Esquire Kelly V. Parsons, Esquire Cobb Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Ricky Krell 1889 Cedarwood Drive Melbourne, Florida 32935
The Issue The issue is whether Petitioner's applications to renew licenses for two Residential Level II facilities in Davenport, Florida, should be denied and a $2,500.00 fine imposed for the reasons given in the Department of Children and Families' (Department) Amended Denial of Applications & Imposition of Fines issued on February 8, 2018.
Findings Of Fact Background The Department is charged with the responsibility of regulating the licensing and operation of residential treatment facilities pursuant to chapter 397, Florida Statutes (2017). Petitioner is a Delaware limited liability corporation authorized to conduct business in the State of Florida. Subject to the outcome of this proceeding, Petitioner is licensed to operate two Residential Level II facilities in Davenport under the name Cares Treatment. One facility is located at 146 Sunset View Drive (Case No. 18-0230), the other at 389 Sand Ridge Drive (Case No. 18-0234). The licenses were issued on December 15, 2016, and were to expire on December 14, 2017. Each license authorizes Petitioner to "provide substance abuse services for Adults and/or Children/Adolescents for the following component: Residential Level 2 (6 beds)."4/ Resp. Ex. 2. The Torres family home is not a licensed facility and services cannot be provided to residents who reside at that location. Petitioner is not licensed to provide services under the Partial Hospitalization Program (PHP), the Outpatient Program (OP), or the Intensive Outpatient Program (IOP).5/ These services require a separate license from the Department. In December 2017, Petitioner filed with the Department new applications to provide those services. However, the applications were denied and no appeal was taken. According to the renewal applications, Petitioner provides a "residential treatment facility for children and adolescents." Resp. Ex. 3. Each facility "is a free-standing residential facility which provides a structured living environment within a system of care approach for children, adolescents and adult[s] who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities." Id. Petitioner's facilities are a family-run business. Roberto Torres, Jr. (Mr. Torres), is the Chief Executive Officer and manager of the limited liability corporation; Cecilia Torres, his wife, is the Treasurer/Chief Financial Officer; Karla Torres, a daughter, is the Vice President/Chief Administrative Officer; Roberto Torres, III (the son), is the Secretary/Chief Information Officer; and Kristina Torres, a daughter, is the Ambassador/Chief Relationship Officer. Resp. Ex. 4. On November 27, 2017, Petitioner filed its applications for renewal of the two licenses. On December 1, 2017, the Department issued separate, but identical, letters denying both applications on the grounds they were not timely filed and they were incomplete. Resp. Ex. 5. On February 16, 2018, the Department was authorized to amend its letters of denial with a single amended denial document, which combined the original charges in the two letters into Counts I and II and added new Counts III, IV, and V. Resp. Ex. 1. The amended denial letter also seeks to impose a $2,500.00 administrative fine for violating various Class II rules. The specific rules are not identified in the original or amended charging documents, but the Department's PRO cites Florida Administrative Code Rule 65D- 30.003(1)(a) and "rules set forth in 65D-30" as the rules on which it relies. Because proper notice of the specific rules was not given, the rule violations have not been considered. The charges in the amended denial letter can be summarized as follows: Count I - The application for the facility at 146 Sunset View Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count II - The application for the facility at 389 Sand Ridge Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count III - In November 2016, O.G., a 16-year-old female who had been recently discharged from a Baker Act facility, was admitted for treatment of substance abuse and mental health issues. After residing a few months at the Sunset View location, she was moved to the Torres family home, an unlicensed facility, where she remained for one or two months. By providing services at that unlicensed location, Petitioner violated section 397.401(1). She was then moved to the Sand Ridge location for two or three months before being returned to the Torres family home. She continued to receive substance abuse treatment at the family home until her discharge two or three months later. This constitutes a second violation of the same statute. While under the care of Petitioner, O.G. was subjected to actions which resulted in verified abuse reports against Mr. Torres and his son and contributed to the delinquency and exploitation of a child. Such conduct constitutes a threat to the health or safety of O.G. in violation of section 397.415(1)(d). Count IV - On October 19, 2017, J.W., who transferred from a Baker Act facility, was accepted by Petitioner for care and to receive "partial hospitalization program" services, which Petitioner is not licensed to provide. This constitutes a violation of sections 397.401(1) and 397.415(1)(a)2.c. J.W. was later discharged in contravention of his wishes and desires, which resulted in him relapsing and again being Baker Acted. This conduct constitutes a threat to J.W.'s health or safety in violation of section 397.415(1)(d). Count V - On January 23, 2018, the Department attempted to conduct an onsite inspection at both licensed facilities to review J.W.'s files, but was denied access to the premises. Petitioner later failed to respond to a written request by the Department for records relating to J.W. and O.G. This conduct constitutes a violation of section 397.411. The charging document asserts the conduct in Count III violates four Class II rules (not otherwise identified), for which a $500.00 fine should be imposed for each violation; and the conduct described in Count IV violates "applicable" Class II rules (not otherwise identified), for which a single $500.00 penalty should be imposed. Rule 65D-30.003(1)(a), the only rule cited in the Department's PRO, requires in relevant part that "all substance abuse components" be provided "by persons or entities that are licensed by the department pursuant to Section 397.401, F. S." The Charges Counts I and II Section 397.407(8) provides that "the Department may deny a renewal application submitted fewer than 30 days before the license expires." For Petitioner to meet this deadline, license renewal applications were due on or before November 15, 2017. An application is not considered filed until an application with the signature of the chief executive officer is submitted by the applicant. Around 3:30 p.m. on November 27, 2017, Mr. Torres spoke by telephone with Ms. Harmon, the Department System of Care Coordinator, regarding three new licensure applications he was filing. During the conversation, he was reminded that renewal applications for his two existing licenses had not been filed. Mr. Torres responded that he "would have to get on that." Properly signed renewal applications were submitted electronically at 5:00 p.m. and 5:42 p.m. that afternoon. In his cross-examination, Mr. Torres attempted to establish that the Department's website, the Provider Licensing and Designation System (PLADS), was periodically inoperative, and this prevented him from filing his on-line applications in a timely manner. However, there is no credible evidence to support this claim. In fact, after Mr. Torres raised this issue early on in the case, Ms. Harmon reviewed the activity log of Mr. Torres' two on-line applications and found that he began the application process in late August or early September 2017, but did nothing further until he hit the submit button after speaking with her on November 27, 2017. Also, during this same period of time, the PLADS program (to which all applicants have access) indicated that the applications were in "Waiting Approval" status, which meant the applications were "in process" but had never been submitted. Therefore, the applications were not timely filed.6/ Section 397.403(1)(f) requires license applications to include, among other things, "proof of satisfactory fire, safety, and health inspections." Neither application filed on November 27, 2017, included an updated Treatment Resource Affidavit, a current Fire and Safety Inspection form, and a complete and current Health Facility and Food Inspection form. Therefore, the applications filed on November 27, 2017, were incomplete. Count III On November 17, 2016, O.G., then a 16-year-old female, was admitted for treatment at the facility. O.G. had a history of bi-polar episodes, depression, and drug abuse. Before seeking treatment at Petitioner's facility, she had been Baker Acted twice. After learning about Petitioner's facility through another provider, O.G.'s family placed her in the facility to address her substance abuse and behavior problems. Upon admission, a treatment plan was devised by a licensed mental health counselor (LMHC), with a target completion date of May 17, 2017. Resp. Ex. 10. The treatment plan listed four staff members overseeing her case: Karla Torres (case manager); the LMHC; and S.F. and K.V., two "caregivers" or interns. Id. O.G. was discharged from the facility nine months later on August 14, 2017. Petitioner was paid approximately $166,000.00 by O.G.'s parents for her nine-month stay. O.G. was initially placed in the facility located at 146 Sunset Drive, where she remained for approximately three months. She was then moved to the Torres family home at 2347 Victoria Drive in Davenport for two or three months. The Torres home is not a licensed facility. By housing her at an unlicensed location and providing services during that period of time, Petitioner violated section 397.401(1), which makes it unlawful to provide substance abuse services at an unlicensed location. O.G.'s parents were unaware that their daughter was residing in the unlicensed family home. After Mr. Torres and O.G. "got into an argument," she was moved to the facility at 389 Sands Drive for several months. She then returned to the Torres home, where she remained for two or three months until she was discharged. By housing her at an unlicensed location and providing substance abuse services, Petitioner violated section 397.401(1) a second time. During her stay at the Torres home, Mr. Torres discussed "sex" with O.G.; he told her that he cheated on his wife; and he complimented her "quite a few times" for having "a nice body." He also told her that "18" was a special age and if she were 18 years old, things would be different. He added that her parents were "too strict." These highly inappropriate comments were especially egregious in nature, given the fact that O.G. was a minor with mental health and substance abuse issues, and she was living in the licensee's family home. One photograph of O.G. taken in the home shows Mr. Torres standing in the background donned in his pajamas. Resp. Ex. 16. These actions constitute a violation of section 397.415(1)(d)2., which makes it unlawful to commit an intentional or negligent act materially affecting the health or safety of an individual receiving services from the provider. Mr. Torres occasionally escorted O.G. to two local bars (Miller's Ale House and Marrakesh Hooka Lounge) in Champions Gate. On one visit to Miller's Ale House in April or May 2017, he purchased her a Blue Moon beer, even though she was a minor and in a substance abuse program. She consumed the beer in his presence while the two sat at the bar. Although Mr. Torres attempted (through argument) to deny the incident, O.G. filmed the event on her cell phone. Resp. Ex. 13. This action by him also constitutes a violation of section 397.415(1)(d)2. Petitioner argues in its PRO that the whole incident was a fabrication and the result of a conspiracy by O.G.'s father, the Tampa Police Department, and Department counsel. The contention is rejected. When O.G. was discharged from the residential treatment facility in August 2017, Petitioner enrolled her in another program, IOP, which required her to periodically return to the facility on weekends for further treatment. Her first return visit was the weekend of August 26, 2017. During the weekend visit, the son gave her a cell phone. O.G.'s admission document for the IOP program indicated she would be given IOP services for 60 to 90 days, with a goal of her being substance free at the end of that period. Resp. Ex. 24. There is no record of her being discharged from the program. The Department argues in its PRO that by providing IOP services to O.G., Petitioner was providing a service beyond the scope of its license. However, this allegation was not included in the amended charging document and has not been considered. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(a licensee may not be disciplined for an offense not charged in the complaint). After being discharged from her original treatment plan on August 14, 2017, O.G. returned to her mother's home. Except for one weekend visit to Petitioner's facility for IOP services, she remained at home until September 16, 2017. That day, O.G. ran away from home with Preston, a resident she had met at Petitioner's facility. After leaving home, she went to Melbourne, and then to West Palm Beach. A Missing/Endangered Runaway Juvenile bulletin was posted by law enforcement on October 5, 2017. Resp. Ex. 11. During this period of time, Petitioner’s records show that O.G. was still enrolled in the unlicensed IOP program. Resp. Ex. 24. While in the West Palm Beach area, O.G. contacted the son on the cell phone he had given her and told him she had run away from home. She asked him to send her some money so that she could go to Tampa to work in a strip club. Because O.G. was not old enough to accept a wire money transfer, the son wired $600.00 to a friend of O.G., who gave her the money. Using the money provided by the son, O.G. traveled to Tampa and met the son on September 30, 2017. The two went to Todd Couples Superstore, where he purchased several adult entertainment outfits she could wear to audition for a job in a strip club. Resp. Ex. 12. He also purchased her various personal items at a Walgreens. The son then drove her to several clubs to audition for a job. After several auditions, she was hired by Scores Tampa, a local strip joint where "people take off their clothes for money." O.G., who was only 17 years old at the time, signed an employment contract on September 30, 2017, using a borrowed driver's license of S.F., a 21-year-old female. Resp. Ex. 15. S.F. was a former intern at Petitioner's facility and is listed as a member of the team staff on O.G.'s initial treatment plan. By that time, S.F. had left Petitioner's facility and moved back to Tampa. That same evening, O.G. began working in Scores Tampa. O.G. says she took off her clothes while performing. The son remained in the club while she worked. After she got off work at 2:00 a.m., he drove her to S.F.'s house. O.G. continued working at the club for the next few days. With the assistance of local law enforcement, O.G. returned to her mother's home on October 7, 2017. After she ran away from home, and even while working in the club, O.G. maintained contact with Mr. Torres through texts and Facetime and asked him not to report her whereabouts to anyone. Although O.G.'s mother spoke to Mr. Torres on several occasions after O.G. went missing in September 2017, neither Mr. Torres nor the son informed her of the daughter's whereabouts. On November 30, 2017, the Department received a report of alleged human trafficking and sexual exploitation of a child. The alleged perpetrator was the son, while the victim was identified as O.G. Because the son was an employee of Petitioner, an institutional investigation was conducted. The investigation was closed on December 26, 2017, with a confirmed report of Human Trafficking-Commercial Exploitation of a Child against the son. Resp. Ex. 17. During the investigation, Mr. Torres and members of his family declined to be interviewed or answer any questions. Instead, they referred all questions to their attorney. On February 6, 2018, the Department received another report of abuse involving Mr. Torres. The report alleged that in April or May 2017, Mr. Torres transported O.G. to a bar at Miller's Ale House in "Davenport" [sic] and purchased her a beer. After an institutional investigation, the file was closed on March 1, 2018, as verified for Substance Misuse – Alcohol against Mr. Torres. Resp. Ex. 18. See also Finding of Fact 18. Mr. Torres declined to participate in the investigation. By clear and convincing evidence, the Department established that the actions of Mr. Torres and his son presented a threat to the health or safety of O.G. in contravention of section 397.415(1)(d)2. Count IV J.W., who did not testify, is a 42-year-old male who was discharged from a hospital on October 9, 2017 (after being Baker Acted), and admitted to Petitioner's facility the same day to receive PHP services. He was diagnosed as having mental health and substance abuse issues and a history of suicidality. He voluntarily left the facility on November 9, 2017. In its PRO, Petitioner characterizes J.W. as "a disgruntled addict." While a resident at the facility, J.W. received a few video sessions with a Miami Springs psychiatrist, who was identified on the renewal applications as the facility medical director, and he was given online counseling sessions for two weeks by an LMHC, who resided in Palm Bay and worked as an independent contractor with the facility. Neither professional was told by Mr. Torres that Petitioner was not licensed to provide PHP services. By providing PHP services to J.W., Petitioner violated sections 397.401(1) and 397.415(1)(a)2.c. According to the LMHC, on October 24, 2017, she was directed by Mr. Torres, who is not a licensed clinician, to "discharge" J.W. from the PHP program and place him in a lower level of care, Sober Living. Resp. Ex. 25. This would still allow J.W. to remain a resident at the facility but not receive the PHP services. Although the charging document alleges that J.W. did not wish to be discharged from the PHP program, and this caused him to have a relapse in his condition and later Baker Acted again, there is no competent evidence to establish this string of events. Count V Section 397.411 requires all licensees to provide Department representatives access to their facilities and to allow the inspection of pertinent records. Based upon information from a provider in Jacksonville that Mr. Torres had requested its assistance in providing PHP services to J.W., the Department instituted an investigation of Petitioner. In January 2018, the Department attempted to conduct an onsite inspection of Petitioner's facilities and to review the files relating to J.W. The inspectors were denied entry. Thereafter, the Department sent a written request to Petitioner for the records of J.W. and O.G. No records were provided and Petitioner failed to respond to the request. These actions constituted a violation of section 397.411. At hearing, Mr. Torres contended (through argument) that because the Department had already taken preliminary action on December 1, 2017, to deny his applications, there was no requirement that he provide access to the facility or respond to written requests for records. This assertion has been rejected. See § 397.411(1)(c), Fla. Stat. (an application for licensure as a service provider constitutes full permission for an authorized agent of the department to enter and inspect at any time).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the applications for renewal of Petitioner's two licenses. An administrative fine should not be imposed. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2018.
