The Issue The issue for determination is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Healey Center was a 198- bed skilled nursing facility operating at 1200 45th Street, West Palm Beach, Florida, and was licensed under Chapter 400, Florida Statutes. On April 17, 2006, AHCA conducted a complaint survey of Healey Center. AHCA's surveyor was Nina Ashton. At the time of the survey, Healey Center's licensure status was standard. As a result of her survey on April 17, 2007, Ms. Ashton determined that an isolated Class III deficiency had been committed by Healey Center, citing Tag N201, a violation of Section 400.022(1)(l), Florida Statutes, failure to adequately identify residents whose history render them at risk for abusing other residents. Healey Center was given until May 17, 2006, to correct the deficiency. By letter dated May 4, 2006, Healey Center was notified, among other things, that the allegation that Healey Center "failed to properly meet the needs of a resident who acts inappropriately" was confirmed and that Healey Center had to achieve substantial compliance by May 17, 2006. A follow-up survey was conducted on June 12, 2006. By letter dated July 10, 2006, AHCA notified Healey Center, among other things, that the deficiency had been corrected. Subsequently, AHCA determined that the deficiency was an isolated Class II deficiency. By letter dated August 8, 2006, AHCA notified Healey Center, among other things, that its (Healey Center's) license status was being changed to conditional, effective for the period April 17, 2006 through September 30, 2006, attaching the license thereto. Also, by separate letter of the same date, AHCA notified Healey Center, among other things, that its (Healey Center's) license status was being changed to standard, effective for the period June 8, 2006 through September 30, 2006, attaching the license thereto. As a result of AHCA’s determination that an isolated Class II deficiency had been committed, it filed an Administrative Complaint against Healey Center. Ms. Ashton's survey focused on Resident No. 1, involving incidents documented in the Nurses Notes from March 10, 2006 through April 17, 2006. Also, she met with the Director of Nursing (DON), Ingrid Kerindongo, because the administrator of Healey Center was on vacation; with Healey Center's social worker, Jackie Loving; and with the unit manager, Edgar Francois. Further, Ms. Ashton reviewed the medication administration record (MAR). On October 20, 2005, Resident No. 1 was admitted to Healey Center from St. Mary's Medical Center. He was suffering from traumatic brain injury and had a diagnosis of bipolar disorder. He was prescribed medication for his bipolar disorder. Resident No. 1 was homeless and had no family members who were willing or able to take care of him. He had resided in an assisted living facility but the facility refused to re-admit him. Resident No. 1 was placed in an all male unit, Held 3 unit, in a semi-private room. Healey Center has two other units, Held 1 and 2 units, wherein both male and female residents are housed. Healey Center was unable to provide Resident No. 1 with 24-hour male nursing staff but used its best efforts to assign male staff to Resident No. 1. Healey Center employs 35- 40 licensed practical nurses (LPNs) of which one is male and 75- 78 certified nursing assistants (CNAs) of which two are male. On or about March 10, 2006, Resident No. 1's behavior began to escalate. Resident No. 1 was involved in numerous incidents with staff wherein he displayed sexually aggressive behavior -- using sexually inappropriate words, making sexually inappropriate propositions, and inappropriately touching them. One particular incident occurred on March 22, 2006, involving a female on the laundry staff. While placing clothes in the closet, she turned around to find Resident No. 1 too close in proximity to her and blocking the exit door with his wheelchair.2 Resident No. 1 indicated to the staff person that he wanted to touch her hands. The staff person managed to exit the room and reported the incident. Resident No. 1 was counseled not to be so close to the staff, not to talk to the staff, and not to make sexual offers to the staff. Further, Resident No. 1's physician and psychiatrist were notified of his behavior. Approximately a week later, on March 30, 2006, Resident No. 1 was acting in an aggressive and threatening manner towards staff, resulting in law enforcement being contacted. He approached a CNA in his wheelchair and was making biting actions at the CNA, acting as if he were going to bite her. Also, Resident No. 1 was being verbally abusive and sexually aggressive towards another staff member, who notified security, who removed Resident No. 1 from the unit and secured him. Law Enforcement was summoned, and the officers determined that the incident did not constitute a crime but was a matter for Healey Center to address. Resident No. 1's physician was notified, who, the night before, had prescribed Zyprexa to address Resident No. 1's escalated aggressive behavior. Furthermore, on March 30, 2006, the physician ordered Ms. Loving, the social worker, to discharge Resident No. 1 to the 45th Mental Health Center. Ms. Loving discussed the discharge with Resident No. 1, and he refused to go to the Mental Health Center. She contacted the Mental Health Center to come to Healey Center to assess Resident No. 1, but the Mental Health Center refused to do so. Resident No. 1 remained at Healey Center. As to the incidents in which Resident No. 1 was verbally abusive, aggressive, and sexually aggressive towards staff, Ms. Ashton determined that Healey Center had addressed the incidents appropriately and used appropriate interventions, where necessary. Additionally, Resident No. 1 became verbally abusive towards other residents. One particular incident occurred on March 15, 2006 and involved his roommate in which Resident No. 1 was upset because his roommate would not turn-off the television. The supervisor was notified and the staff counseled both, Resident No. 1 and his roommate. Afterwards, Resident No. 1 went to sleep in his room. In another incident occurring on March 22, 2006, Resident No. 1 was arguing with another resident in a loud voice and in a threatening manner, using threatening words. The staff talked with Resident No. 1 to determine why he was upset. After determining the reason for Resident No. 1 being upset and calming both residents, the staff counseled Resident No. 1 and the other resident and re-directed them. As to the incidents in which Resident No. 1 was verbally abusive to other residents, and in particular the two incidents previously mentioned, Ms. Ashton determined that Healey Center appropriately addressed the incidents and was effective in resolving them, and that the interventions were effective. Further, Resident No. 1 engaged in inappropriate sexual behavior towards and inappropriate touching of staff. In particular, on April 15, 2006, while answering Resident No. 1's call bell, a CNA found him naked, waiting for her. Also, on April 16, 2006, Resident No. 1 attempted to grab a nurse's buttocks. Furthermore, Resident No. 1 engaged in several incidents involving inappropriate touching of other residents. Two incidents occurred on April 16, 2006, the day before AHCA's survey. One incident involved Resident No. 1 being in another unit, during lunch time, and the staff observing him touching the breast of a female resident, who was ambulating to the dining room, under the pretense of assisting the female resident to the dining room. The supervisor was immediately notified and, upon hearing the notification to the supervisor, Resident No. 1 left the unit. The other incident on April 16, 2006, involved the staff observing Resident No. 1 kissing another resident on the forehead. This incident was also reported. Another incident, involving inappropriate touching of another resident, occurred on April 17, 2007, the day of the survey. Resident No. 1 was observed rubbing the shoulders of another resident, as if massaging the shoulders. The staff advised him not to touch the other residents, and he left. However, he soon returned, rubbing his own shoulders. The staff again advised Resident No. 1 not to touch the other residents at which time he laughed and walked away. This incident was also reported. Resident No. 1 had been refusing to take his medication which was prescribed to control his behavior and included Zyprexa, Seroquel, and Effexor. Numerous entries were made on the MAR indicating his refusal, including March 15, 16, 18, 19, 21, 23, 24 and April 11, 12, 13, and 14, 2006. The evidence did not demonstrate that Resident No. 1's Care Plan was not appropriate, was not appropriately revised and did not contain appropriate interventions or that the interventions were not appropriately implemented by Healey Center. Furthermore, the evidence did not demonstrate that the behavior of Resident No. 1 was not addressed in accordance with his Care Plan. Resident No. 1's physician and psychiatrist were kept informed of all the incidents involving staff and other residents and of Resident No. 1's refusal to take his medication. Resident No. 1's psychiatrist discussed with him his refusal to take medication and, at times, obtained compliance and partial compliance. Resident No. 1's Care Plan contained interventions to obtain his compliance to take medication, and Ms. Ashton found the interventions to be appropriate. The evidence demonstrates that a resident has a right to refuse medication and cannot be compelled to take medication. From April 1 through 6, 2006, Resident No. 1 refused to take his medication. On April 6, 2006, the necessary documentation to Baker Act Resident No. 1 was completed by the doctor, and Resident No. 1 was Baker Acted. On April 11, 2006, Resident No. 1 was returned to Healey Center, and he began to take his medication again. On April 17, 2006, the day of the survey, Resident No. 1 had agreed, after having a discussion with the psychologist, to submit himself for assessment at a psychiatric facility for voluntary admission. On the day of the survey, Ms. Ashton informed Healey Center that it should not accept Resident No. 1 back. She was very concerned that his aggressive and sexually inappropriate behavior had escalated and had moved from being directed at the staff to the residents. Ms. Ashton determined and testified at hearing that Healey Center should have discharged Resident No. 1. Her testimony is found to be credible. She also determined and testified that, when Resident No. 1 was Baker Acted on April 6, 2006, Healey Center should not have re-accepted Resident No. 1 but should have discharged him. Her testimony is again found credible. Ms. Ashton testified that she determined that Healey Center had committed an isolated Class III deficiency. Her supervisor, Maryanne Salerni, has final approval for the classifications of deficiencies. Ms. Salerni agreed and testified at hearing that the violation was an isolated Class III deficiency. As to Healey Center committing an isolated Class III deficiency, the testimony of Ms. Ashton and Ms. Salerni is found to be credible. On May 15, 2006, Resident No. 1 was Baker Acted. On May 16, 2006, Resident No. 1 was discharged to a mental health facility. At hearing, Ms. Ashton testified that the deficiency had been corrected by May 17, 2006, because Resident No. 1 had been discharged from Healey Center on May 16, 2007.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Health Care District of Palm Beach County, d/b/a Edward J. Healey Rehabilitation and Nursing Center did not commit an isolated Class II deficiency and dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of May 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 1st day of May, 2007.
The Issue Whether Rules 33-3.0081(9)(l), 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioners, William Van Poyck, Mike Ramadanovic and Kenneth Boudreaux, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioners are subject to the rules of the Respondent, including the rules challenged in these cases, Rules 33-3.0081(9)(l), 33-3.0083(9)(i), and 33-3.0084(1)(n), Florida Administrative Code (hereinafter referred to as the "Challenged Rules"). Petitioner Van Poyck is on death row, which is considered administrative confinement. All exercise privileges for Petitioner Van Poyck have been suspended for almost three years. Petitioner Ramadanovic at the time of the final hearing was in close management confinement. All exercise privileges for Petitioner Ramadanovic have been suspended for almost one year. Petitioner Bourdreaux at the time of the final hearing was in close management confinement. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. The Challenged Rules. Rule 33-3.0081(9)(l), Florida Administrative Code, governs exercise of inmates who have been placed in "administrative confinement". Administrative confinement is the removal of an inmate from the general inmate population for one or more specified reasons. Rule 33-3.0081(1), Florida Administrative Code. Rule 33-3.0081(9)(l), Florida Administrative Code, provides the following: (l) Exercise -- Those inmates confined on a 24-hour basis excluding showers and clinic trips may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule shall be implemented to ensure a minimum of two hours per week of exercise out of doors. Such exercise periods shall be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. The superintendent or assistant superintendent may restrict exercise for an individual inmate when the inmate continues to pose a serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates; by involvement in acts which seriously interfere with the staff's daily security functions, or by actions demonstrating an extreme escape risk. Inmates shall be notified in writing of this decision and may appeal through the grievance procedure. The denial of exercise shall be for the shortest length of time to accomplish the goal of safety, security and order within the institution and shall be documented on Form DC4-814. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not compromise the safety or security of the institution. Rule 33-3.0083(9)(i), Florida Administrative Code, governs exercise of inmates who have been placed in "close management". Close management is the "long-term single cell confinement of an inmate apart from the general inmate population, where the inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0083(1), Florida Administrative Code. Rule 33-3.0083(9)(i), Florida Administrative Code, provides the following: Exercise -- Those inmates confined on a 24-hour basis, excluding showers and clinic trips, may exercise in their cells. However, if confinement extends beyond a 30-day period, an exercise schedule should be implemented to ensure a minimum of 2 hours per week of exercise outside of cell. Such exercise periods will be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts can document such exercise periods should not be granted. Medical restrictions may also place limitations on the exercise periods. Recreational equipment may be available for the exercise period provided such equipment does not threaten the safety or security of the institution. Rule 33-3.0084(1)(n), Florida Administrative Code, governs exercise of inmates who have been placed in "disciplinary confinement". Rule 33-3.0084(1)(n), Florida Administrative Code, provides the following: (n) Exercise -- Those inmates confined on a twenty- four hour basis (excluding showers and clinic trips) may exercise in their cells. However, if confinement extends beyond a thirty-day period, an exercise schedule should be implemented to ensure a minimum of two hours per week of exercise outside of the cell. Such exercise periods should be documented on the confinement records. Exceptions to this requirement may be made only when clear and compelling facts show that such exercise periods should not be granted. Restrictions may also be placed on the exercise periods by medical staff. The reason for any exercise restrictions shall be documented. Period of Outdoor Exercise. The Challenged Rules all provide that inmates may exercise in their cells and that "a minimum of two hours per week of exercise outside of the cell" should be provided to inmates in administrative confinement, close management and disciplinary confinement. Unless specified otherwise, all references to "inmates" in this Final Order are to an inmate in administrative confinement, close management or disciplinary confinement. At Florida State Prison, non-death row inmates subject to the Challenged Rules are given an opportunity to attend one, two-hour exercise session a week. If an inmate misses a session for medical or attorney "call out", a holiday or inclement weather, the session is not made up. The Challenged Rules do not specifically require that missed sessions be made up. On their face, the Challenged Rules provide that two hours of exercise should be provided without indicating any exceptions. Rule 33-3.0081(9)(l), Florida Administrative Code, is mandatory: two-hours of exercise must be provided each week. The amount of time inmates are allowed to exercise is affected by the budget and staff of the Respondent. Because of lack of funds and staff, the Respondent is not able to provide more exercise time to non-death row inmates subject to the Challenged Rules. At Florida State Prison, a maximum security prison, there are thirteen wings housing inmates. Ten wings house inmates (including four housing inmates on death row) in various types of confinement status. Nine of the ten wings have a separate area, referred to as a "yard", in which inmates may exercise outdoors. There are two correctional officers on duty at each of the yards during the outdoor exercise period for non-death row inmates subject to the Challenged Rules. One sergeant also rotates between the yards. Four to five correctional officers are required to take inmates in and out of the yards. Each inmate must be strip searched, handcuffed with his hands behind his back and then escorted into the yard. Exercise Yards. The Challenged Rules do not specify the size of the area in which outdoor exercise to be provided to inmates. The Challenged Rules also do not specify the number of inmates that may be placed in an area for outdoor exercise. Yards at Florida State Prison consist of a fenced concrete slab. The yards for non-death row inmates are approximately 24' by 33', or 792 square feet. Usually 17 inmates are placed in the yard next to the inmates' wing at a time. The number of inmates in the yard on occasion may be 20 to 25. This is the exception, rather than the rule. Recreational Equipment. The Challenged Rules do not require that recreational equipment be provided to non-death row inmates. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, provide that recreational equipment may be available for the exercise period if it does not compromise the safety or security of the institution Rule 33-3.0083(9)(i), Florida Administrative Code, is silent concerning recreational equipment. Recreational equipment is not provided to inmates during exercise at Florida State Prison. Inmates tend to fight over recreational equipment and to abuse it when it is provided. In light of the findings of fact, infra, concerning death row inmates, the evidence failed to prove that the failure to provide non-death row inmates with recreational equipment is arbitrary or capricious. Although there is a rational and reasonable reason for not providing recreational equipment to inmates who have proven to be a disciplinary problem (including some death row inmates) the Respondent is evidently prohibited from withholding recreational equipment for death row inmates by court decree. No such decree applies to non- death row inmates. Yard Suspension. The Challenged Rules provide that exceptions to the provision for outdoor exercise may be made "only when clear and compelling facts can document such exercise periods should not be granted." Rule 33-3.0083(9)(i), Florida Administrative Code. Rules 33-3.0081(9)(l) and 33-3.0084(1)(n), Florida Administrative Code, contain very similar language. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, do not specify who may decide who is to be denied exercise in the yard, referred to as being placed on the "yard suspension list", or the specific reasons for placing an inmate on such a list. The various institutions are given discretion to decide who will place an inmate on the yard suspension list and the reasons for such suspensions. Rules 33-3.0083(9)(i) and 33-3.0084(1)(n), Florida Administrative Code, also do not specify the procedures for placing an inmate on the yard suspension list, do not require periodic review of the list, do not specify a maximum period of time an inmate may be on the list and do not specify the conditions which must be met for an inmate to be removed from the yard suspension list. Rule 33-3.0081(9)(l), Florida Administrative Code, provides who may restrict exercise, requires that there be a "serious threat to the safety, security and order of the institution by recent demonstrations of violence, by continuing threats of physical harm, written and spoken, toward staff and other inmates" and other acts, requires that inmates be notified in writing and provides that denial of exercise be for the shortest length of time possible. There is a list of inmates at Florida State Prison who have been denied yard exercise. Inmates are placed on the yard suspension list because of security problems similar to those specified in Rule 33-3.0081(9)(l), Florida Administrative Code, caused by an inmate. The procedure for placing an inmate on the yard suspension list is as follows: The chief security officer recommends that an inmate be placed on the list. The recommendation of the chief security officer is reviewed by a team of senior correctional officers and the superintendent. The superintendent makes the final decision of whether an inmate is placed on the yard suspension list. Any inmate placed on the list is notified in writing and may appeal the decision through the grievance procedure. Chapter 33-29, Florida Administrative Code. The following procedure is followed to determine whether an inmate is removed from the yard suspension list: The list is reviewed monthly by the team of senior correctional officers that recommends the placement of an inmate on the list. If an inmate's behavior demonstrates that he has adapted to the institution and is no longer acting out in such a manner to create a security problem, a recommendation is made to the superintendent to remove the inmate's name from the list. The superintendent makes the final decision of whether an inmate's name is removed. Inmates are placed on the yard suspension list for the shortest period of time necessary to accomplish the goal of changing the inmate's behavior and to eliminate the threat to security caused by the inmate. Inmates on the yard suspension list are still allowed to exercise in their cells. Although cells are small and exercise is not necessarily easy in the cells, inmates may do elevated push-ups, step-ups, and jog in place. There are at any given time approximately 100 inmates at Florida State Prison on the yard suspension list. Inmates may be kept on the yard suspension list for years. Inmate Jimmy Stephens has been on the yard suspension list since February, 1990, and was previously on the yard suspension list for over fifteen years. Petitioner Van Poyck was placed on the yard suspension list upon his arrival at Florida State Prison on December 28, 1988, and remained on the list until January 7, 1992. Death Row Inmates. Inmates on death row are in administrative confinement and are, therefore, subject to Rule 33-3.0081(9)(l), Florida Administrative Code. Inmates on death row are provided two, two-hour exercise sessions each week. A total of four hours of exercise. If an exercise session is missed by a death-row inmate, the session is made up. The yards provided to death row inmates are larger than the yards provided to non-death row inmates. The yards for death row inmates at Florida State Prison are 71' by 69' (4,899 square feet), 80' by 64' (5,120 square feet), 62' by 91' (5,642 square feet) and 74' by 80' (5,920 square feet). Approximately 24 to 30 death row inmates are placed in the yard next to the inmates' wing at a time. Death row inmates are provided with a variety of recreational equipment. The amount of exercise time, the size of the yards and the amount of recreational equipment provided to death row inmates was agreed to in a consent decree in a federal court proceeding involving the Department of Corrections.
Findings Of Fact Stephen J. Sefsick was employed as Corrections Officer I at Zephr Hills Corrections Institute (ZCI) in November 1980. Sefsick met the minimum qualifications for promotion to Correctional Officer II. Sefsick is a white male and was not promoted to the position of Corrections Officer II. On May 24, 1985, Sefsick was denied a promotion to Corrections Officer II at ZCI when that promotion was given to Constance Hale, a Hispanic female. On June 28, 1985, Sefsick was denied a promotion to Corrections Officer II when that promotion was given to Ronald Young, a black male. A promotion committee consisted of Correctional Officer Supervisor I Wayne Hutto, Correctional Officer Chief Sammy Hill, Assistant Superintendent Eugene Ginn, and Superintendent Ray Henderson. The first two named interviewed 22 applicants for the vacancy filled May 24, 1985, including Sefsick as well as reviewed all applicants' personnel file. They also relied upon their knowledge of the applicants, all of whom they supervised, to make this recommendation. For the May 24, 1985, vacancy Hutto and Hill recommended Correctional Officer I Constance Hale for the promotion, citing her past performance and her continuing education and training as reasons for their recommendation. Assistant Superintendent Ginn reviewed this recommendation, approved same and forwarded it to Superintendent Henderson who has final promotion authority at ZCI. Superintendent Henderson approved the recommendation and Hale received the promotion. The same procedure was followed for the position filled June 28, 1985, except that those applicants interviewed for the May promotion were not again interviewed. On June 28, 1985, Hill and Hutto recommended Correctional Officer I Ronald Young for promotion to Correctional Officer II and this recommendation was accepted by the Superintendent and Young was promoted. Florida Department of Corrections has an Affirmative Action Plan (Exhibit 5) which provides that "promotions to vacant positions shall be through open competition and based on prior job performance in order that the best qualified person for the position is chosen. However, every opportunity shall be made to upgrade and promote women, minorities, and the handicapped to more responsible positions. . . . " No quota for promotions is provided and all witnesses concurred that the best applicant was chosen for the two vacancies here questioned. Sefsick received five employee service ratings between the time he was employed in November 1980 and the time of the promotions in question. The first two evaluations in 1981 were conditional, the third was satisfactory, and the fourth and fifth were above satisfactory with the fifth assigned November 20, 1984. In January 1985, Sefsick was counselled by Major Hill and Lieutenant Hester regarding his practice of using the "snitch" system to make drug seizures. He was informed that he was thereby jeopardizing the safety of inmates as well as his own safety. An additional 160 hours of training had to be completed by correctional officers at ZCI in order to qualify for the full pay increase effective in 1985. Sefsick was working the night shift and made little effort to change shifts to attend the evening classes required to complete the training. His supervisors believed he was resisting taking the required training. However, he completed the training before the deadline. Officer Hale completed the required training for correctional officer and in addition received training in Advanced Emergency Medical Procedures and Advanced Report Writing and Review. Since her employment on June 15, 1982, Officer Hale has received three evaluations in which all of the marks assigned were satisfactory and above satisfactory. Since his employment as a correctional officer on March 18, 1983, Officer Young has received four evaluations, two of which were satisfactory and two above satisfactory. Young has also completed all required training courses. Neither Sefsick's race nor his sex was considered by the promotional committee in denying him promotion.
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, violated Section 400.28(1)(a), Florida Statutes, and Rule 58A-5.0182, Florida Administrative Code, as cited in the four AHCA Administrative Complaints, based on four consecutive AHCA surveys of Respondent's assisted living facility (ALF), alleging failure to provide care and services appropriate to the needs of its residents. Whether the facts alleged constitute Class I or Class II deficiencies. Whether, if found guilty, a civil penalty in any amount or the imposition of a moratorium is warranted pursuant to the cited statutes.
Findings Of Fact Petitioner is the State of Florida, Agency for Health Care Administration. Petitioner is responsible for licensing and regulating adult living facilities pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Respondent is Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, an assisted living facility located at 201 North Sunset Drive, Casselberry, Florida, which is licensed and regulated pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. On June 1, 2001, Petitioner's employee, Vilma Pellot, whose duties include surveying ALFs for compliance with licensure statutes and rules, conducted a survey of Respondent's facility based on an abuse complaint received by Petitioner. That same day, Pellot discussed her findings with the facility administrator, and later prepared AHCA form 3020. In her report, Pellot found that the facility was not in compliance with Rule 58A-5.0182, Florida Administrative Code, which states, in pertinent part: Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Pellot determined that the standard was not met because "the facility failed to take proactive measures to prevent patient to patient abuse and to minimize potential for falls resulting in injuries." The deficiency was classified as a Class II deficiency and a prospective $2,500 fine was imposed. At hearing, Petitioner did not produce the records that Pellot reviewed, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the June 1, 2001 survey was the AHCA form 3020, which Petitioner acknowledged was not being entered for proof of the facts stated therein. Pellot did not print or send the AHCA form 3020 to the facility and she does not know if the facility received the form 3020 when she made a subsequent visit to the facility. On July 16, 2001, Pellot conducted a follow-up visit to Petitioner's facility. She again observed residents with bruises or dressings and reviewed their records. She also observed two residents sleeping in the wrong beds. In addition, Pellot determined that based on an interview and incident reports review, the facility failed to submit to Petitioner a preliminary report of all adverse incidents within one business day after occurrence. Pellot discussed her findings with the new administrator and concluded that there was still patient wandering, resulting in injury, and patient-to-patient abuse. Following her visit, Pellot drafted another AHCA form 3020, finding a continued violation of Rule 58A-5.0182, Florida Administrative Code. The continued deficiencies of June 1, 2001, were upgraded to Class I and a prospective fine of $5,000 imposed. In addition, a Class III deficiency was found for the failure to report adverse incidents within one day. At hearing Petitioner did not introduce the records that Pellot reviewed on her second visit, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation that two residents were in the wrong beds, the only other direct evidence offered by Petitioner regarding the July 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. In regard to the Class III deficiency for failure to report adverse incidents within one day, there was no testimony or records presented by Petitioner to support the allegation set forth in the AHCA form 3020, dated July 16, 2001. Petitioner acknowledged, in its Order of Immediate Moratorium, that an incident report had been submitted regarding a kicking incident involving Resident number 6. Other incidents noted in the AHCA form 3020 did not require incident reports because they did not meet the definition of "major incident" as defined by rule. Following the surveys on June 1, 2001, and July 17, 2001, Petitioner made an administrative determination that "conditions in the facility present an immediate or direct threat to the health, safety or welfare of the residents . . ." and issued an Order of Immediate Moratorium against Respondent's ALF. Respondent was not permitted to admit any new residents until the moratorium was lifted. On August 8, 2001, another follow-up survey to the ALF was made, and Pellot observed bruises on residents and one resident wandering into another resident's room. Another AHCA form 3020 was prepared finding a continued violation of the rule. The continued deficiencies of June 16, 2001, were classified as Class I and a prospective fine of $5,000 imposed. In addition, a Class III extended congregate care (ECC) deficiency was found for the alleged violation of not admitting a resident who required ECC services, total help with activities of daily living (ADL), or discharging her. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she allegedly spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation of a resident wandering into another resident's room, the only other direct evidence offered by Petitioner regarding the August 8, 2001 survey was the AHCA form 3020, which contained hearsay statements. On August 17, 2001, another follow-up survey of the ALF was conducted, and bruises on residents were observed and a band-aid was seen on one resident. Another AHCA form 3020 was prepared, finding a continued violation of the rules. The continued deficiencies were classified as Class I and a prospective fine of $5,000 imposed. In addition, the Class III ECC deficiency previously determined in the August 8, 2001 survey was found to have been corrected. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the August 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. Pellot returned to the facility on September 27, 2001, for a monitoring visit and on September 28, 2001, for a follow- up survey. At that time she concluded that the alleged deficiencies had been corrected and recommended that the moratorium be lifted. Petitioner recognizes that ALF residents do fall. The rule does not require that a facility be "fall free." There is no rule or regulation concerning falls, and there are no guidelines set forth in AHCA complaint investigation guidelines. Lois Bosworth, a certified gerontological nurse, is Director of Operations for Homestead Health Management Group which operates Respondent's ALF. Homestead Health Management Group operates nine ALFs in Florida, all of which have ECC licenses. ECC stands for Extended Congregate Care which is a higher level of care than a standard ALF license. All of Respondent's ALF residents are memory impaired to some extent. Most are in their 60s or older, some have early Alzheimer's, others have dementia for other reasons. Because they suffer from dementia, the residents' physical abilities are declining. Some are not ambulatory and use wheelchairs, some are able to use walkers to some degree, most can still feed themselves. In the evening, ALF residents with dementia have to be cued over and over to perform the activities of daily living (ADLs) more often than in the daytime because while they're up during the day, they become very tired and their processes decline. Some residents have the same levels all day, but over the course of weeks, to months, to years, they will decline, needing more hands-on personal services as their disease progresses. ECC has established criteria and retention criteria which Respondent is required to follow. With the dementia clients, it is gauged on their ability to transfer with minimal assistance. They may need help becoming steady because sitting for any length of time makes them unsteady or off balance when they first stand up. Retention criteria is also based on how much cuing a resident needs in feeding themselves. With Alzheimer's patients, it is typical that feeding is one of the last of the physical needs that they can do themselves. When residents are no longer able to ambulate or feed themselves, they are more prone to physical ailments that require nursing home care. If there is a question concerning appropriate placement, Respondent will have the Department of Children and Family Services (DCF) CARES team become involved. The CARES team consists of nurses that make the official determination of the appropriate level of care required for a resident. Many times it is necessary to involve the CARES team because the family is reluctant to have their loved one transferred from the ALF to a nursing home. In a facility such as Respondent's where there are many residents with dementia, it is not unusual for the residents to get into confrontations with one another. Often they will shout at each other before they touch each other. Alzheimer residents will sit next to each other touching each other, shoulder to shoulder, knee to knee. They'll even hold hands walking down the hallway. There are other times they need to have the comfort of someone touching them. But they have periods of time when they don't want people touching them at all and for no apparent reason. Of the residents identified in the June 6, 2001 survey, Resident number 1 was ambulatory. She would wander at night time up until midnight before she would settle down and go to sleep. This is typical Alzheimer's type activity. She was a lady who had very large bags under her eyes constituting soft tissue which can continue to bleed from a bruising into both eyes. Such an injury is typical of people with glasses, or people who get hit over the bridge of the nose, making it quite common to have two black eyes with one injury. A small bruise over the eye one day may be extremely massive the next because there will be continued leaking of blood under the skin and the tissues that cause the bruise. This resident was allegedly struck by another resident who was not known to be aggressive, but did not recognize people all the time. One of the defenses that Alzheimer's people have, if they can't process the thought and recognize someone, is to make someone the bad person because they don't remember what happened. Often they will respond verbally ordering the person to go away, even though the person may be a roommate. In the earlier stages of Alzheimer's, a person may recognize that he or she is forgetting things and have a tendency on some occasions to be more resistant, not necessarily aggressive. The resident who allegedly struck Resident number 1 was not known to be aggressive to other residents, even after this alleged incident. The alleged incident could not have been foreseen. Resident number 2 in the June 1, 2001 survey was receiving therapy for her falls. There was a recommendation that a different wheelchair with a seat which slightly tilts back be tried. After the June 1, 2001 survey, this resident was placed in a nursing home which could use restraints in a wheelchair. Resident number 5 in the June 1, 2001 survey would sit on the side of the bed to put her slippers on. She would pitch forward because she was short and the bed was too tall for her to sit on. Her mattress was placed on the floor to alleviate the problem which was resolved. Resident number 5 had a tendency to bruise easily. It was determined that she had a bleeding disorder, so that even a slight bump would cause her skin to bruise. She continued to have skin tears and bruising following June 1, 2001, which required her to go to the emergency room. When she returned her skin tear had not healed and she had very massive bruising from use of an IV in the emergency room. The patient eventually went back to the hospital and did not return to the facility. Resident number 4 in the June 1, 2001 survey was the resident who allegedly had an altercation with Resident number 1. She had no other problems such as this. Resident number 4 apparently alleged that Resident number 1 came into her room and grabbed her arm. Then she hit that resident for coming into her room, to defend herself. This is the only event that occurred with this resident. A person with dementia is usually not credible. It is not uncommon for people with dementia to blame something that happened to them on someone else. Due to memory impairment, they do not want people to think that something is wrong with them, so they blame someone else for something that happened to them. The material available, publications and educational offerings for Alzheimer's encourage allowances for wandering for Alzheimer's clients, because it is part of the disease process and part of their need. They are not able to sit quietly; in fact, the literature states that it's important that they be permitted to wander. At Respondent's ALF wandering is allowed throughout the facility, which is open. Respondent is barrier- free to permit the wandering, allowing a resident to pace up and down the hallways or common areas. The option to participate in activities is always the right of the resident. Alzheimer's clients can't always make that decision, and so they're encouraged to participate in activities to keep them distracted to a degree. They cannot be forced to participate if they choose to continue to walk up and down the halls. Respondent tries various techniques to deter wandering into the wrong room, from posting photographs on residents' doors to decorating rooms with personal items. Respondent tries hard to keep the residents in common areas when they wander and tries to keep doors to residents' rooms closed. But wandering is still a problem with Alzheimer's residents. There are no publications on how to prevent falls. Falls can be minimized in number and by the severity of injuries. The facility needs to be able to provide what the resident needs; if that means they need to go barefoot, then they should be allowed to go barefoot without neglect being alleged. While Respondent cannot prevent falls, it tries to minimize them by providing appropriate care and services to meet the residents' needs within the standards set by the state. Respondent has a procedure in place to minimize falls. Fall assessments were done by the therapy department. When someone had a first fall, therapy would do a screening and assessment to see if they had a need for therapy services to increase their functionality of ambulating. The administrative staff would also review the circumstances of the fall to see if it was preventable or non-preventable. The resident would be evaluated to determine if there was a medical condition that had arisen that was contributing to the fall. There would be a general assessment of the different environmental issues as well as clinical issues. The resident would be watched for any possible decline. Resident number 3 in the June 1, 2001 survey is a tall gentleman who walks around with a stuffed dog. He is friendly and takes direction easily. He is not aggressive, and he does not have a tendency to walk into other peoples' rooms. Other than the two residents seen napping in other residents' beds, the incidents cited in the July 16, 2001 survey, which led to the issuance of a repeat citation and a moratorium, consisted of the actions of one resident identified in that survey as Resident number 6. Resident number 6 was a 48-year-old lady who was brought to Respondent by DCF through an emergency placement under a court order to place her in an ALF for supervision of her care needs. She was a younger resident than normal for the facility because she had a diagnosis of Huntington's Chorea, which is a type of dementia which does not progress as quickly as Alzheimer's but strikes adults earlier in life. Respondent has an agreement with DCF which provides for emergency placements for persons who do not need to go into nursing homes, for those with memory impairment, including after-hour placement, and weekend placement. Respondent does not require that DCF bring with them a medical assessment. Regulations allow Respondent to have one completed within 30 days following the emergency placement. Resident number 6 was at a table and another resident reached for her purse. Resident number 6 picked up a cup of coffee that was sitting on the table and threw the coffee on the other resident's lap. The other resident involved was not injured because the coffee served was not hot coffee. Resident number 6 came to the facility in early June 2001. The coffee incident occurred on June 30th and was the first indication that there might be a problem. Respondent did not interpret the action of Resident number 6 to mean that Resident number 6 was going to hurt anyone. Resident number 6 did not come with a history of hurting anyone, and there was no documentation that she had tried to hurt anyone in the past. She calmed down after the incident and didn't seem to be a problem. Resident number 6 was quite settled in and was doing well. This was a DCF placement to see how she did and whether or not she would be able to return home or go to a different living arrangement. On July 11, 2001, the survey indicated that Resident number 6 had an altercation with Resident number 1 over a cigarette lighter and pushed him down and kicked him, requiring him to be admitted to the hospital with a fractured hip. On July 14, 2001, Resident number 6 allegedly grabbed the arm of Resident number 3 who was in her room and created a skin tear to Resident number 3 as she was pulling her down the hall to the nursing station. During the July 16, 2001 survey, Respondent was directed to remove Resident number 6 immediately from the facility. DCF declined to help. Respondent placed Resident number 6 on one-to-one supervision until the next day when DCF refused to remove her. Respondent could not Baker Act Resident number 6 to a mental facility because she did not meet the criteria. Respondent was finally able to get Resident number 6 to agree to a voluntary psychiatric placement. Resident number 4, a 98-year-old female, identified in the August 8, 2001 survey, apparently had been found on the floor of her room in April with no injuries. She appeared to fall because she was trying to dress herself and the blanket got wrapped up in her legs. In June, she fell into the soda machine with no injuries. And then on July 18th and 20th she fell in the evening. Evening is when some Alzheimer's residents have what is called "sundown syndrome," simply meaning that as the sun sets, they have become so tired they've exhausted all their physical resources and will have a decline. Resident number 4 was receiving physical therapy to keep her ambulating at the highest level possible. She reached her highest potential in therapy because she couldn't remember safety factors that she was taught. The purpose of physical therapy was to help Resident number 4 in her ability to ambulate and minimize her falls. The only way to actually prevent her from falling was to restrain her, which is not permitted at an ALF. On August 1st, Resident number 4 aparently stood up from a bench that was in the hallway and literally ran down the hallway, running to the point that a therapist and the nursing assistant could not catch her. Resident number 4 only stopped because she fell forward and hit her nose on the floor. She was in a dementia state, and did not reach her hands out to catch herself. There was no way anyone could have prevented such an accident, especially since Resident number 4 did not take off running all the time and she was under direct supervision when this happened. Resident number 3 in the August 8, 2001 survey, apparently fell in the TV room and the corner of her chin hit the table. While the injury did cause a massive bruise on her chest, there was no way of knowing the fall would occur since the resident did not have a history of falls. Resident number 6 identified in the August 8, 2001 survey, was non-verbal. During the survey she followed the staff and held hands with a staffer. She is a person who was always reaching for someone. She had a habit of patting another resident on the head, but she was not aggressive. She merely liked to touch, kiss, hold hands, or hug people. Respondent tried to keep her hands busy by giving her something to hold but that did not stop her need to touch people. During the surveyor's tour of the facility on August 8, 2001, a resident mistakenly walked up to a room and asked if it was hers. She was redirected before she entered the room. The resident who claimed to be missing glasses and spools of thread has a mild dementia. She was wearing glasses and the facility supplied her with spools of thread when she ran out. Resident number 2, in the August 17, 2001 survey, was totally ambulatory and did not have a history of falling. She was steady but very confused. She was walking to dinner in the dining room in an open area, no barriers, and apparently when she made a step, she stepped on the shoe of her other foot and fell down, striking her head on the piano. She had a tendency when she sat down to constantly shake her leg or cross her legs back and forth. She was in continuous motion, which is not unusual with Alzheimer's type of dementia. Apparently when she first came back from the hospital, she was able to stand up, help herself to bed with some assistance. Through the night she was having more difficulty and returned to the emergency room where they discovered that she in fact had a fractured hip from the fall. Resident number 1, in the August 17, 2001 survey, was approximately 97 years old, very frail and very thin. He had a recent diagnosis of cancer that was a progressive non-Hodgkins type lymphoma. He had good days and he had bad days, as far as his physical health, which is typical of the disease process. He also had confusion from memory impairment disorder that may or may not have been Alzheimer's. There were days when Resident number 1 could walk using a cane, on other days he could walk with a walker, and there were days when he was so tired he used a wheelchair. With his demented state he wasn't always sure which appliance to use for the day and had to be reminded. Resident number 1 was a smoker, so he would go out on the patio frequently. Sometimes he would reach for things and, being frail, would fall. He was in end stage with his cancerous process and one of his goals was to stay out of a nursing home. Resident number 1 did have a series of falls which created skin tears because his skin was very thin, but nothing that was more of a serious nature than that, and he was adamant that he stay at the ALF. He was able to be maintained at Respondent's ALF and did not have any fractures while he was there. Toward the end of his life, he determined that he did not want to be involved with the hospice group that came to visit. He did eventually go to a different level of care. Resident number 3, identified in the August 17, 2001 survey, fell in the shower when she was being assisted in May of 2001. She apparently fell and hit the back of her head on a shower stall, but she was receiving assistance at the time. This was an unusual occurrence, Resident number 3 was not a resident who fell frequently or had a great history of falls. On August 12 the survey notes that she had redness under both her eyes and a cut or scratch on her nose. This was another resident who had very large bags under her eyes and rubbed her eyes frequently. There was no documentation that this resident had received an injury or a fall that would create this redness around her eyes or the yellowish, purplish hematomas. There was no indication that this resident had had a fall and she was not prone to falls. Resident number 6, identified in the August 17, 2001 survey, was a resident who was required to wear shoes because it is considered inappropriate for our elders to walk around barefoot. She would take her shoes off frequently. When she did wear them, she had a difficult time picking her feet up high enough to walk without someone with her. Resident number 6 apparently tripped with no apparent injuries, but later that day her right hand showed bruising and swelling. There was no indication as to the cause of the swelling and an X-ray indicated no fracture. Resident number 6 apparently tripped again while walking, tried to catch herself and held onto a chair; she had a skin tear on her shin. Resident number 6 although ambulatory, would often catch herself from falling. Resident number 4, identified in the August 17, 2001 survey, scratched his arm because he has dry skin. It began bleeding and an aide administered a bandage. There was no need for documentation. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of this facility, or the personal care of the residents which directly threatened the physical or emotional health, safety or security of the facility residents. At no time during any of her surveys that are at issue in this proceeding did Pellot find Respondent's ALF to be short-staffed. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of the facility or the personal care of the residents which would have been an imminent danger to the residents or guests of the facility, or a substantial probability that death or serious physical or emotional harm could result therefrom. Respondent was providing appropriate care for the needs of the residents that were identified in the statements of deficiencies at issue in this proceeding. None of the patients who were involved in these incidents cited in the four surveys had the mental capacity to form a willful intent to harm someone. Nor could the patient's actions be interpreted, under the facts, to be anything more than defensive reactions or touching incidents of persons with mental impairments. The relevant facts showed that Respondent took appropriate steps to address wandering problems and protect residents in its facility. The events surrounding Resident number 6, in the July 16 survey were an anomaly and could not have been foreseen by the staff at the facility. Respondent had a right to rely on the assertion by DCF that Resident number 6 was appropriate for placement in an ALF. The incident with the coffee was not significant enough to precipitate the resident's removal from the facility. When it became apparent that the resident was aggressive at times, Respondent took appropriate steps to have her placed elsewhere. In addition, this isolated incident was not similar to those for which Respondent was cited in the first survey of June 1, 2001. This was a problem created by a particular patient and not incidents of falls or wandering. As such, it should not have triggered a repeat offense nor a moratorium. The evidence produced by Petitioner was primarily hearsay in nature without corroboration. Respondent presented none of the patients, staff or other witness to the incidents referred to, and none of the records referred to or relied on by the surveyor were produced. Under these circumstances, Petitioner failed to meet its burden to produce clear and convincing evidence that Respondent committed the violations alleged in Petitioner's form 3020s, the Administrative Complaints, or the Order of Immediate Moratorium. Respondent's witness was credible and its explanation surrounding each incident was plausible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that: The deficiencies in the AHCA form 3020s are unfounded and must be withdrawn; The Administrative Complaints be dismissed against Respondent; and The Order of Immediate Moratorium be revoked. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 DANIEL M. KILBRIDE 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 3rd day of September, 2002. Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether prison inmates' television viewing privileges are a legal interest of which the Administrative Procedure Act takes cognizance?
Findings Of Fact Until the memorandum and institutional operating pro- cedure here challenged were implemented, petitioners and other inmates at Union Correctional Institution were permitted (when not required to be doing something else) to watch television in common areas between three o'clock and eleven o'clock weekday evenings, and on holidays, between eight o'clock in the morning and two or three o'clock the following morning. After somebody donated equipment for cable television at Union Correctional Institution, and after inmates, including Lionel E. Chase, had installed the cable, James D. Stephens, recreation director at Union Correctional Institution, met with six other members of a committee which included Colonel D. E. Jackson, Jim Reddish, Assistant Superintendent for Prisoners, Lieutenant Rothman (phonetic) and an inmate representative who had no say in developing policy. As a result of the meeting, a memorandum dated January 23, 1984, was addressed to the inmate population, stating: T.V. programs including sporting events beginning at 10:00 p.m. or before, shall be viewed to completion. Any program starting after 10:00 p.m. shall be terminated at 11:30 p.m., unless authorized in advance by the T.V. Policy Committee. Petitioners' Exhibit No. 3. Earlier, on January 3, 1984, Superintendent Massey signed Union Correctional Institution Operating Procedure No. 83-30, "Institutional T.V. Policy" (IOP 83- 30) Petitioners' Exhibit No. 2. This document specified "selection and viewing procedures....[for] each respective housing area." With respect to every housing area in Union Correctional Institution, IOP 83-30 provides: On Monday through Friday, sets will be turned on at 3:00 P.M.; on weekends and holidays, sets will be turned on at 8:00 A.M. All t.v.'s shall be turned off exactly at 11:30 P.M. Sports programming and special events that air past the time limit shall be viewed to completion. IOP 83-30.5(D)(4). Although signed by Superintendent Massey on January 3, 1984, IOP 83-30 is dated December 30, 1983. The memorandum and IOP 83-30.5(D)(4) have been enforced against petitioners. In enforcing the new policy, correctional staff have not only turned the television sets off earlier on weekends, they have also closed the dayrooms earlier. The guards now padlock the dayroom doors when they turn off the television sets. In the past, the dayrooms remained open even after television viewing stopped, and inmates were allowed to read, paint, write letters and so forth. The inmates filed a grievance petition protesting this change in practice. Petitioners' Exhibit No. 1. Rule Rationale Before installation of the cable, inmates had a choice of two or three programs, but they now have a much wider choice, at least when the cable is in good repair. A person or persons unknown have slashed the cable some half dozen times. There are inmates who believe the guards, some of whom reportedly do not feel inmates should watch television at all, have sabotaged the cable. According to some prison officials, it is the inmates who have slashed the cables, which, they say, is an indication of how high feeling runs between the inmate faction that prefers sports programs and the faction that does not. In any event, according to respondent's witnesses, it was for fear of inmates' quarrelling in choosing among the larger number of options cable television has brought that viewing hours on weekends and holidays were shortened. This does not, of course, explain why they were lengthened on weekdays. Nor was there any evidence that the greater range of television programs has caused any dissension among the inmates. The hearing officer has had the benefit of the parties' posthearing submissions, including petitioners' proposed findings of facts, conclusions of law and final order. To the extent proposed findings of fact have not been adopted they have been deemed unsupported by the weight of the evidence, immaterial, subordinate or cumulative.
The Issue The issues are whether Respondent, Baker Distributing Co., LLC ("Baker") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2012),1/ by discriminating against Petitioner based on his race or national origin and/or whether Baker retaliated against Petitioner for complaining of discriminatory conduct by discharging Petitioner from his employment.
Findings Of Fact Baker is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Baker markets and distributes air-conditioning, refrigeration and heating equipment, as well as parts and supplies for that equipment. Baker has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, national origin, or any other categories of persons protected by state or federal anti-discrimination laws. At the time of his hiring, Petitioner received a copy of Baker's employee handbook setting forth Baker's anti- discrimination and anti-retaliation policies. Petitioner, who identifies himself as mixed race, Hispanic and African-American, was hired by Baker on August 2, 2010, as a temporary warehouse employee at its Jacksonville distribution facility. Because of the quality of his work, Petitioner was soon thereafter retained as a full-time Baker employee by Don Crenshaw, the warehouse manager of the Jacksonville facility. Petitioner and Mr. Crenshaw became friendly enough to go to lunch together on at least a dozen occasions. Mr. Crenshaw also helped Petitioner with some personal matters, including helping bail Petitioner out of jail on one occasion and taking him to orthodontist appointments. The parties agree that Petitioner's relationship with Mr. Crenshaw and with Baker in general soured in August 2011. Petitioner claims that his problems began when Mr. Crenshaw overheard him speaking Spanish with a fellow employee. Petitioner testified that Mr. Crenshaw made fun of him after learning of his Hispanic heritage and treated him differently than when he believed Petitioner was white. Petitioner testified that he complained to Mr. Crenshaw about making fun of his heritage. Petitioner stated that he was subjected to a "random" drug test two days later. He then noticed that hours were being shaved from his paychecks. Within two months, Petitioner had been fired. Petitioner offered no corroborating evidence to support any of these allegations. Mr. Crenshaw categorically denied Petitioner's allegations and denied that Petitioner had ever complained about any discriminatory comments or actions. Mr. Crenshaw's denials are credited. Mr. Crenshaw stated that Petitioner's attitude changed after management declined his written demand for more money in August 2011. Mr. Crenshaw testified that Petitioner had been a good worker when he started at Baker, but that his attitude changed after his salary demand was rejected. Mr. Crenshaw noted that Petitioner had become hostile towards him, "slamming my door open in the office wanting to talk about things." Mr. Crenshaw denied Petitioner's claim that his hours were being shaved. Mr. Crenshaw testified that another employee, Robert Robinson, had complained that his time card was two hours short. Mr. Crenshaw pulled the records and found that Baker's administrator had made a mistake on Mr. Robinson's time. Mr. Robinson was given credit for the missing two hours. This incident apparently gave Petitioner the idea that Baker was shaving hours on his time card. Mr. Crenshaw investigated, and made copies of all the time records for Petitioner, but could find no errors on Petitioner's time cards. On October 20, 2011, two Baker employees reported to Mr. Crenshaw that Petitioner had changed the screen saver on a warehouse computer to read, "Baker. Sucks. Balls. Don-Key-Kong Balls." The employees told Mr. Crenshaw that they found the language offensive. Mr. Crenshaw reported the incident to Angelia Hiers, Baker's vice president of human resources, and Colin Dees, Baker's director of distribution. Mr. Crenshaw, Ms. Hiers, and Mr. Dees met with Petitioner to discuss the incident. At the meeting, Petitioner did not deny that he was the author of the offensive language on the warehouse computer. At the hearing, Petitioner admitted that he changed the message on the warehouse computer, but testified that he intended to write the message, "Baker blows away the competition." He stated that the character limit on the screensaver only allowed him to write, "Baker blows away the." Mr. Crenshaw testified that after the employees complained to him, he went down to the warehouse and saw the offending language for himself. The language was as reported by the two employees. Petitioner theorized that these employees must have changed his innocuous message of support for the company to the offensive language after Petitioner left the area. He could offer no evidence to confirm his theory. Petitioner's version of these events is not credible on its face, and is rendered more unlikely by the fact that he did not relate his version during the meeting with Mr. Crenshaw, Ms. Hiers, and Mr. Dees, when doing so might have saved his job. As the head of human resources, Ms. Hiers had the responsibility for Petitioner's discipline. She decided, with the agreement of Mr. Crenshaw and Mr. Dees, that Petitioner's actions constituted a violation of Baker's computer access policy. Baker's computer access policy provided, in relevant part: Any employee that allows or uses computers at Baker locations for purposes not directly attributed to business is subject to disciplinary action that may include dismissal. Non-business uses include, but are not limited to, playing games, Internet access for other than business reasons, and any display of offensive or pornographic information that may be in violation of the law. Ms. Hiers concluded that Petitioner's use of the warehouse computer was in violation of the quoted policy. Because the warehouse computer was available to and could be seen by any employee working on the warehouse floor, Ms. Hiers also concluded that Petitioner's screensaver message also constituted harassment. Based on Petitioner's actions, Ms. Hiers decided to terminate Petitioner's employment on October 20, 2011, the same day that the incident occurred. Petitioner never complained of discriminatory treatment or harassment to any supervisor at Baker. On this point, Mr. Crenshaw's testimony is credited and Petitioner's testimony is found not to be credible. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Baker for his termination. Petitioner offered no credible evidence that Baker's stated reasons for his termination were a pretext for race discrimination or national origin discrimination. Evidence presented at the hearing indicated that Baker enforces its harassment policies without reference to an employee's race or national origin. Baker discharged a white male employee due to a complaint of harassment filed by Petitioner. Petitioner alleged that the employee had touched him while reaching for a radio on a table. Ms. Hiers investigated the incident and terminated the white male employee. Petitioner offered no credible evidence that Baker discriminated against him because of his race or national origin in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Baker.
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 finding that Baker Distributing Co., LLC, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of May, 2013.
Findings Of Fact The initial Petition for Administrative Hearing was filed on September 12, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 33-3.00125, Florida Administrative Code, and I.O.P. #P2-89.10 were challenged. The Challenged Rule is titled "Inmate Telephone Use." The Challenged Rule sets forth the "minimum telephone privileges that shall be granted inmates. . . ." The I.O.P. apparently deals with the same general subject as the Challenged Rule. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 4, Affected Interest of the Petitioner, Second Amended Petition, provides the following: 4. That the (Petitioner) is affected by the Agancy [sic] promulgation of 33-3.00125 et. seq. that materially fail to follow the applicable rulemaking procedure setforth [sic] in 120.54. And, establish adequate standards for the Agency decision making as needed June 6th, 1990, August 13th, 1990 that exceed it [sic] grant of authority and fail [sic] to include the requirements of (consistancy) [sic] in delegating to I.O.P. P2-89.10 as 33-1.007(1), (3), (4) mandate and the unbridle [sic] discretion exercised by the Agency to deny (telephonic communication) needed for judicial reason [sic] as requirements of the court in Case # 90- 2968-23 Horton v. Florida Federal S.B. as not being available for judicial needs. [Emphasis in original]. This paragraph is fairly typical of most of the Petition, the First Amended Petition and the Second Amended Petition. Although it contains some "legalize", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of several employees of the Respondent relating to several alleged incidents involving attempts by the Petitioner to use a telephone. In the Statement of the Case and Facts of the Petition, paragraphs 13-20 pertain to an incident which allegedly occurred in December, 1989, paragraphs 21-42 pertain to an incident which allegedly occurred in May and/or August, 1990, paragraphs 43A-48A pertain to an incident which allegedly occurred in August, 1989, and paragraphs 52A-59A pertain to an incident which allegedly occurred in January, 1991. These events are further referred to in other portions of the Petition and throughout the First and Second Amended Petitions. Paragraph 24, Statement of the Facts, of the First Amended Petition is fairly typical of the allegations concerning specific actions complained of by the Petitioner: 24 That the (Petitioner) has repeatively [sic] been subjected to the (practices) arbitrary, capriociously [sic], exercise pursuant to 33-3.00125 et. seq. F.A.C. as by Florida State prison administrators as T.L. Barton, L.E. Turner, P.C. Decker, and dates of July 23rd, 1988; June 5th, 1990, August 13th, 1989 and as setforth [sic] herein; [Emphasis in original]. The alleged incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings. Having failed to obtain a favorable response to his grievances, the Petitioner is seeking through this process to have the particular incidents reviewed. The Petitioner's allegations concerning the alleged incidents involving his attempts to obtain use of the telephone are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, actions of the Respondent in denying him the use of a telephone on the dates raised by the Petitioner in his Petition and his First and Second Amended Petitions. 9 The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule and the I.O.P. See paragraphs 6, 11-12, 17, 20, 44A, 50A and 60A of the Statement of the Case and Facts of the Petition. The Petitioner also mentions constitutional provisions in numerous other parts of the Petition, the First Amended Petition and the Second Amended Petition. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule or the I.O.P. is unconstitutional. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rule and the I.O.P. are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition, the First Amended Petition and the Second Amended Petition. On November 18, 1991, an Order Granting Motion to Dismiss and Cancelling Formal Hearing was entered. On December 6, 1991, a pleading titled "Petitioner [sic] Amended Petition Pursuant to Order Issued Nov. 18th 1991 According [sic] Opportunity to Amend" was filed by the Petitioner. The First Amended Petition is very similar to the Petition and suffers from the same deficiencies. The First Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the First Amended Petition which, if proven, would support a determination that the Challenged Rule and the I.O.P. are invalid under Section 120.56, Florida Statutes. On December 9, 1991, an Order Concerning Amended Petition was entered dismissing the First Amended Petition and giving the parties an opportunity to file proposed final orders. On December 12, 1991, the Petitioner filed a document titled Petitioner's Motion to File a Second and Final Amendment" and a Second Amended Petition. The Second Amended Petition does nothing to correct the deficiencies of the Petition or the First Amended Petition. The motion to file the Second Amended Petition was denied by Order entered December 18, 1991.
The Issue Whether there was cause to suspend Petitioner for ten days and place Petitioner on probation for 12 months for alleged violations of the provisions of law, rules, regulations, and operating procedures of the Office of the Pinellas County Sheriff.
Findings Of Fact Respondent is a constitutional officer for the State of Florida, responsible for providing law enforcement and correctional services within Pinellas County, Florida. At all times material to this case, Christian was employed by Respondent as a detention deputy, holding the rank of sergeant. Christian is responsible for directing and instructing other detention deputies in the confinement, care, custody, and restraint, when necessary, of inmates. She has some latitude in carrying out these duties. Larry Germonprez (Germonprez) was admitted to the Pinellas County jail in March 2003. After he was initially admitted to the jail, he began to exhibit odd behavior, including undressing himself and walking around his cell unclothed. As a result of his odd behavior, Germonprez was transferred from the C Wing of the jail to the Bravo Wing, which provides for closer observation of inmates in need of observation for medical reasons, including mental health problems. Christian participated in Germonprez's transfer to the Bravo Wing. She observed that his conversation was not making any sense. Germonprez was placed in Isolation Cell 3, in the Bravo Wing. Subsequently, Germonprez began to kick the door to Isolation Cell 3 and babble in an unintelligible manner. Medical staff requested that Germonprez be transferred to an observation cell in South-6 because they believed that Germonprez's behavior was due in part to claustrophobia. The door in Isolation Cell 3 was a solid metal door with a small window for observation and a slot for food service on the lower portion. The door on the South-6 cell consisted of metal bars, making the cell appear larger and less confining. Additionally, South-6 had cameras, which could be used to monitor the inmates on a 24-hour basis. On March 11, 2003, as part of her responsibilities as a sergeant, Christian supervised the relocation of Germonprez from Isolation Cell 3 to South-6. Detention Deputies Walter Kelly (Kelly) and Paul Papasergi (Papasergi) were assigned to make the transfer. When Christian, Kelly, and Papasergi arrived at Isolation Cell 3, Christian advised Germonprez that he was going to be relocated to another cell and ordered him to place his hands against the wall. Germonprez did not verbally respond to Christian, but obeyed her order by placing his hands on the cell wall. Kelly and Papasergi proceeded to enter the cell after Germonprez placed his hands on the wall. When they opened the door, Germonprez turned and charged at the detention deputies. A struggle ensued, and the detention deputies wrestled Germonprez to the ground. The deputies encountered continued resistance and struggled to gain control of the situation. Christian was present during the time the detention deputies were using force to restrain Germonprez and was the officer in charge of the scene. Christian did not give the detention deputies wrestling with Germonprez any instructions to use pain compliance techniques, such as pressure points or knee strikes. She did not use her radio to call her superior, Lieutenant Will Williams (Williams) or to call for the response team. The response team consists of eight to 12 detention deputies, who are assigned to respond to incidents throughout the jail. Once members of the response team receive a request for assistance, they immediately proceed to the scene to assist. Germonprez continued to struggle with the detention deputies, who were at this point attempting to handcuff Germonprez behind his back. After Christian and the detention deputies realized handcuffing Germonprez behind his back at that time was not possible, Christian instructed the detention deputies to handcuff Germonprez with his hands in front of his body. Frontal handcuffing provides less control of the inmate, limits the detention deputies in options available to exercise control, and provides the inmate a weapon and the opportunity to swing his arms, to engage in choking maneuvers, or to grab someone or something. General Order 14-1.3 of the Pinellas County Sheriff's Office provides that when a prisoner is violent or gives an indication of belligerence or when a prisoner may cause injury to himself or others that handcuffs shall be used in accordance with maximum safety procedures, which includes the following procedure: Persons in custody shall be handcuffed with hands behind the back, palms outward, prior to searching. With keyholes facing outwards, the single strands of the handcuffs should be placed against the prisoner's wrist, below the wrist bone, and pressed forward until snug-fitting, yet not tight enough to cause physical discomfort or harm. Exception: The safety of deputies, the public and the prisoners shall be considered in following the procedure. An arrestee who resists or is likely to resist arrest should be handcuffed as quickly as possible without regard to the prescribed procedure. If sufficient back-up units are available and the prisoner can be safely controlled, the handcuffs should be re-applied in accordance with the prescribed procedure. The policies of the Pinellas County Sheriff's Office required Christian to contact her supervisor after a use of force had been instituted and to have the medical staff assess an inmate against whom a use of force had been initiated. Christian did neither after the detention deputies' use of force against Germonprez in Isolation Cell 3 and prior to transporting him to South-6. After the detention deputies handcuffed Germonprez, he calmed down and no longer struggled. Christian decided it was safe to transfer Germonprez to South-6 and instructed the detention deputies to continue the transfer while Germonprez was still handcuffed with his hands in front of his body. Christian did not instruct the detention deputies to re-adjust the handcuffs so that Germonprez would be handcuffed with his hands behind his back. Christian called the only other detention deputy assigned to Bravo Wing, William Johnson (Johnson), to come and assist in the transfer of Germonprez to South-6. Christian's request of assistance from Johnson left the other inmates in the Bravo Wing unsupervised. The four detention deputies, Kelly, Papasergi, Johnson, and Christian proceeded to escort Germonprez down the hall to South-6, which was a short distance away from Isolation Cell 3. Johnson and Papasergi were on each side of Germonprez, holding Germonprez's arms at the elbows. Christian and Papasergi were a few feet behind Germonprez and the other detention deputies. During the course of the transfer to South-6, Germonprez pulled away from Kelly and Johnson and grabbed the control box with his hands. The control box is a device which allows detention deputies to open and close the cell doors remotely. Most likely, Germonprez would not have been able to pull away from the Kelly and Johnson if Germonprez had been handcuffed with his hands behind his body. Using minimal force, Kelly and Johnson released Germonprez's grip on the control box and continued down the hall to South-6. Upon arriving at South-6, Kelly and Johnson entered the cell with Germonprez with the intention of removing the handcuffs and leaving Germonprez in the cell. Papasergi was stationed at the control box and was awaiting authorization to close the cell door. Christian was outside the cell door. Once in South-6, Germonprez resisted the detention deputies' efforts to remove the handcuffs. Kelly and Johnson forced Germonprez face down on the cell bunk, but Germonprez continued to struggle. Christian called for Papasergi to go into the cell to help the others restrain Germonprez. Christian also called the lieutenant in charge, Williams, and advised him of the situation. When Williams arrived at the scene, Kelly, Johnson, and Papasergi were holding the struggling Germonprez down on the bunk. Williams called the response team and also requested the restraint chair. A restraint chair is used to control a violent inmate. The chair has grooves in the back so that an inmate can put his arms in the grooves after being handcuffed from behind. Additionally, the inmate would be strapped across the chest, waist, and feet. Prior to the use of a restraint chair, an inmate must be checked by medical staff, and the placement of the inmate in the restraint chair is required to be video taped. After Williams arrived on the scene, the detention deputies were able to put leg shackles on Germonprez and reposition the handcuffs with Germonprez's hands behind his back. By this time, Germonprez's resistance had lessened. Because force had been used to restrain Germonprez, the jail's medical staff was called to check Germonprez prior to putting him in the restraint chair. The nurse arrived and found that Germonprez was not conscious and called a Code 99. Christian told the detention deputies to leave the cell. The medical staff attempted to revive Germonprez, but were unsuccessful, and he died. The autopsy of Germonprez revealed that he died as a result of blunt force trauma to the chest, resulting in asphyxiation. Germonprez had several injuries, including 17 rib fractures, bruising, cuts, and an injury to the head. Some, but not all the rib fractures, might have been sustained as a result of the use of CPR or other life saving measures. At no time prior to entering the South-6 cell did Germonprez present to Christian or the other detention deputies any indication that he was injured. When a death of an inmate occurs at the jail, a special investigation into the incident is conducted by the Administrative Inspections Division. Sergeant Mark Fletcher (Fletcher) conducted a special investigation of the death of Germonprez. Fletcher was charged with the responsibility to review the incident, determine what happened, and to determine if the policies in place at the time of the incident were effective. As part of the investigation, in August 2003, Fletcher interviewed Christian and the other detention deputies involved in the incident. Because the investigation was not a disciplinary investigation, Fletcher did not advise Christian that she had a right to be represented by counsel. On February 16, 2005, Christian was notified that she would be the subject of a disciplinary investigation conducted by the Inspections Bureau, Administrative Inspections Division relating to the incident involving the death of Germonprez. Pursuant to the disciplinary investigation, Fletcher took a sworn statement from Christian and advised her of her right to counsel prior to the taking of the statement. The Administrative Review Board subsequently reviewed the allegations and evidence compiled by the Inspections Bureau, Administrative Inspections Division and determined Christian had violated the Pinellas County Civil Service Act and the rules, regulations, and operating procedures of the Office of the Sheriff for Pinellas County. Specifically, the alleged violations and the conduct upon which those violations were based were: Violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, subsection 4: violations of the provisions of law or the rules, regulations, and operating procedures of the office of the Sheriff; Violation of General Order of the Pinellas County Sheriff's Office, 3-1.1, Rule and Regulation 5.4 (Level Five violation), relating to duties and responsibilities. By memorandum to Christian dated April 15, 2005, Respondent advised her that the determination of the violations was based on the following: On March 11, 2003, you were charged with supervising the relocation of Inmate Larry Germonprez from Isolation cell 3 to South 6 on B-Wing in the Pinellas County Jail. Prior to attempting the relocation of Inmate Germonprez, you did not effectively address visible factors that you knew or should have known, could adversely effect the attempted relocation of Inmate Germonprez. You declined to notify the Shift Commander of the potential adverse situation and take proper precautions prior to attempting to relocate Inmate Germonprez from isolation cell 3 to South 6. When Inmate Germonprez attempted to physically defeat staff's efforts at relocating him, you again failed to notify the Shift Commander and take proper precautions prior to continuing the relocation of Inmate Germonprez. Staff under your direction, failed to establish and maintain the necessary physical control of Inmate Germonprez required for his successful relocation. The attempted relocation ended in the death of Inmate Germonprez who was under your care, custody, and control. As a result of the recommendation of the Administrative Review Board, disciplinary action in the form of a ten-day suspension and probation for 12 months was imposed upon Christian by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Christian violated General Order 3-1.1, Rule and Regulation 5.4; suspending her for ten days; and placing her on supervisory probation for 12 months. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 10th day of November, 2005. COPIES FURNISHED: Keith C. Tischler, Esquire Jolly & Peterson, P.A. 2145 Delta Boulevard, Suite 200 Post Office Box 37400 Tallahassee, Florida 32315 James A. Sheehan, Esquire 341 Third Street, South St. Petersburg, Florida 33701 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
