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AGENCY FOR HEALTH CARE ADMINISTRATION vs CASSELBERRY ALF, INC., D/B/A EASTBROOK GARDENS, 01-004492 (2001)
Division of Administrative Hearings, Florida Filed:St. Petersburg, Florida Nov. 19, 2001 Number: 01-004492 Latest Update: May 16, 2003

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

Florida Laws (4) 120.569120.57120.68415.102
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DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS' COMPENSATION vs CUSTOM GRANITE KITCHENS AND BATHS, LLC, 13-000799 (2013)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Mar. 05, 2013 Number: 13-000799 Latest Update: Oct. 21, 2013

The Issue The issue in this case is whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers? compensation, as alleged in the Stop-Work Order and Third Amended Order of Penalty Assessment, and if so, what penalty is appropriate.

Findings Of Fact The Department of Financial Services (Petitioner or the Department) is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for their employees and corporate officers. Mr. Donald Hurst is a workers? compensation compliance investigator for the Department of Financial Services, Division of Workers? Compensation. He has been employed in that capacity for about nine years and has conducted approximately 7,000 investigations. On December 20, 2007, Mr. Sherman Yarbrough registered the fictitious name of Custom Granite Kitchens and Baths (CGKB) with the Florida Department of State, showing the mailing address for the business as 1210 West 15th Street, Panama City, Florida. Department of State records show Mr. Yarbrough as the owner of the fictitious name, and show that it was in effect until December 31, 2012. Payroll Services, Inc. (Payroll Services), is a broker for employee leasing companies. Ms. Betty Jo Laws is the office manager. Ms. Laws performs bookkeeping duties, and, at all times relevant here, sold employee leasing services to employers. When clients came in seeking employee leasing services, she would take down all of the information, find an appropriate leasing company from among the several that Payroll Services represented, and assist the client in completing all of the required paperwork. American Staff Management (ASM), a Florida corporation engaged in employee leasing, assigns its employees to various clients as “co-employers.” ASM provides those employees with workers? compensation coverage and payroll and tax services, while allocating to the client extensive direction and control over the day-to-day work activities of the assigned employees. On or about October 6, 2011, CGKB entered into a Service Agreement through Payroll Services under which ASM would provide it employee leasing services. Under the agreement, ASM would co-employ certain employees and provide them with workers? compensation and other benefits of employment. ASM would issue the payroll checks and be responsible for meeting tax accounting and reporting requirements related to the employment. The agreement provided that ASM would not be considered the employer for any individual until ASM?s new hire paperwork, an I-9 form (if required), and a W-4 tax withholding form were received by ASM. It further provided that ASM would not be considered the employer until CGKB had been notified by ASM that the employee had been hired by ASM as an assigned employee. CGKB would pay ASM the regular rate of pay for the employees along with an additional fee of 19.68 percent of the payroll for these services. In December of 2011, Mr. Charles Burchell, representing SSI Management (SSI), came down from Brentwood, Tennessee, to look at the VUE, a condominium that SSI was constructing at 2303 Highway 98, Mexico Beach, Florida. Mr. Yarbrough walked onto the site, gave Mr. Burchell a card from CGKB, and told Mr. Burchell that he did tile and cabinet work. Sometime in the middle of June 2012, SSI entered into a contract with CGKB for construction work at the VUE. Mr. Burchell?s testimony indicated that he was not sure if SSI?s contract was with the LLC or CGKB: Q: So in the course of your dealings with Mr. Yarbrough, did he ever –- do you remember what he said about the LLC? A: No. Q: Do you recall him saying anything about the LLC? A: You know, I just know when we wrote checks, we wrote it to his personal name. I don?t know about the LLC. Q: So you?re not sure? A: No, I?m not sure. Q: Okay. A: I just know his business card said Custom Granite Kitchens and Baths. I don?t have any idea, you know, the status of the company or anything else. Mr. Burchell testified that he asked Mr. Yarbrough for proof of insurance when he started the job and several times afterwards, but did not receive any information from him. Mr. Burchell testified that SSI distributed its first check for the Mexico Beach project, made out to Sherman Yarbrough, on or about June 22, 2012. The contract for the construction work had to have been entered into sometime before this, and Custom Granite Kitchens and Baths, LLC, was not yet in existence. Custom Granite Kitchens and Baths, LLC, was created on June 29, 2012. The registered agent was listed as Mr. Sherman Yarbrough, 1210 West 15th Street, Panama City, Florida. Mr. Yarbrough testified that he was aware his ownership of the fictional name of Custom Granite Kitchens and Baths was due to expire at the end of the year. He testified that he was planning to sell the company and so decided not to renew the fictional name but instead create an LLC and convert the existing business into that. Mr. Sherman Yarbrough is the sole owner of Custom Granite Kitchens and Baths, LLC. Mr. Yarbrough is a managing member of the LLC and is the party in actual control of the LLC. On July 3, 2012, Mr. Yarbrough obtained a notice from the Internal Revenue Service assigning the LLC an Employer Identification Number. On this same date, Mr. Calvin Johnson filled out the following employment paperwork: a W-4 form for tax withholding allowances; portions of the Department of Homeland Security?s Employment Eligibility I-9 form; an ASM Employee Enrollment Paperwork form, and an ASM Employment Agreement. The bottom portion of the I-9 form indicated the “Business or Organization Name” as “Custom Granite Kitchens and Baths, LLC,” but was not signed in the space provided for the signature of an authorized representative of the employer. At the bottom of the ASM Employee Enrollment Paperwork form, in a box indicating that it was “To be completed by Supervisor,” the worksite employer was identified as “Custom Granite Kitchens and Baths, LLC.” Mr. Johnson began construction work at the Mexico Beach property on July 3, 2012, working alongside employees of CGKB. Mr. Johnson was paid on Fridays in cash for his work by Mr. Yarbrough. Beginning with an ASM check dated July 24, 2012, he was paid by check. On July 11, 2012, Mr. Nicholas Tucker, who had worked for Mr. Yarbrough previously, started to work on the Mexico Beach property. On his ASM Employee Enrollment Paperwork form, the “Worksite Employer” was listed as “Custom Granite Kitchens and Baths.” Mr. Tucker signed the ASM Employment Agreement, the W-4 form, and the I-9 form on July 20, 2012. The bottom portion of the I-9 form, which had a space for “Business or Organization Name,” was left incomplete. On or about July 14, Mr. Yarbrough told Ms. Laws at Payroll Services that Ms. Marion Tucker would be bringing Payroll Services two new employment applications. Ms. Tucker worked for Mr. Yarbrough at CGKB as the secretary, and was also listed as a managing member of the new LLC. On or about July 17, 2012, Mr. Michael Chapman began work at the Mexico Beach property. On the ASM Employee Enrollment Paperwork form, the “Worksite Employer” was listed as “Custom Granite Kitchens and Baths.” Mr. Tucker signed the ASM Employment Agreement, the W-4 form, and the I-9 form on July 18, 2012. The bottom portion of the I-9 form, which had a space for “Business or Organization Name,” was left incomplete. On July 20, 2012, Mr. Hurst conducted a site visit at 2303 Highway 98, Mexico Beach, Florida. He observed a worker cutting tile in the parking area. The worker identified himself as Mr. Eulalio Galindo and he produced a business card for CGKB. The card indicated that Mr. Sherman Yarbrough was the owner. Mr. Galindo indicated the employees were paid through an employee leasing company, but he did not know the name of it. Mr. Hurst interviewed three other workers at the worksite. Mr. Charles Rustad and Mr. Nick Tucker were sanding down drywall. Mr. Rustad said he had been working for Mr. Yarbrough for about 10 months. Mr. Tucker said he had been working about a week. In another room, Mr. Chapman was painting. He said he had been working for Mr. Yarbrough for only about three days. Mr. Johnson was also on the worksite on July 20, 2012, doing tile edging in a bathroom. He and Mr. Hurst did not meet, and Mr. Johnson only learned of Mr. Hurst?s visit later, when he came down for another load of tiles. Mr. Johnson, Mr. Tucker, and Mr. Chapman were engaged in construction activity at the Mexico Beach property. Mr. Hurst checked the Department of State?s website for information on Custom Granite Kitchens and Baths, and when he did his search he came up with Custom Granite Kitchens and Baths, LLC. It showed that the LLC had been an active entity since June 29, 2012, and listed Mr. Yarbrough as the registered agent. Mr. Hurst completed a Field Interview Worksheet, on which he listed the time as 11:30 a.m. on July 20. He listed the business name as Custom Granite Kitchens and Baths, LLC, and wrote down the names and contact information for the four workers with whom he had talked. Mr. Hurst checked the Coverage and Compliance Automated System (CCAS) maintained by the Department to see if an insurance company had provided information regarding workers? compensation insurance. CCAS did not show any workers? compensation coverage for the LLC. CCAS also did not show any exemptions for the LLC on file. On July 20, 2012, Mr. Yarbrough went to Payroll Services and told Ms. Laws that he wanted to obtain workers? compensation coverage for the LLC. He provided her with the notice from the Internal Revenue Service dated July 3, 2012, assigning the LLC an Employer Identification Number. Mr. Yarbrough watched Ms. Laws complete a Service Agreement between ASM and the LLC, which Mr. Yarbrough then signed and dated. Based on information provided to her by Mr. Yarbrough and a printout of information he gave her from the “Sunbiz” web site, Ms. Laws also completed the Payroll Services Client Information Form for the LLC, indicating the “desired effective date” of coverage to be July 20, 2012. Mr. Yarbrough gave Ms. Laws the employment papers for Mr. Johnson to submit to ASM as an employee of the LLC. Although Mr. Yarbrough maintained he did not take action on July 20, 2012, to obtain workers? compensation for Mr. Johnson on behalf of the LLC, Mr. Yarbrough was evasive and nonresponsive in his testimony, and generally not at all credible. Mr. Yarbrough also gave Ms. Laws the employment application papers that had been completed by Mr. Johnson. Mr. Yarbrough said that “Marion” (Ms. Tucker) would be bringing a couple more new employment applications later. After Mr. Yarbrough left, Ms. Laws noted that there was no signature of employer in the bottom portion of the I-9 form, so she signed Mr. Johnson?s name to it. Mr. Yarbrough did not take any steps on June 20, 2012, to transfer any of the four people who were already covered employees of CGKB to the new LLC. Mr. Hurst called Ms. Tucker and asked about workers? compensation coverage. Ms. Tucker referred him to Ms. Laws. When Mr. Hurst contacted Ms. Laws, she explained that Payroll Services was a broker for leasing companies, and that the leasing company for CGKB was ASM. When Mr. Hurst asked about any new employees, Ms. Laws stated she had a new application for Mr. Johnson. She provided Mr. Johnson?s documentation to Mr. Hurst by e-mail. She told Mr. Hurst that it was her understanding that Mr. Yarbrough was transferring the company over to the LLC. Mr. Hurst then called ASM. He was told that ASM provided no coverage to the LLC, but covered four employees -- Mr. Yarbrough, Ms. Tucker, Mr. Rustad, and Mr. Galindo –- under Sherman Yarbrough as employer. Mr. Hurst was told that Mr. Tucker and Mr. Chapman were not covered by ASM. Based upon the information provided to him that Mr. Tucker and Mr. Chapman had no coverage, Mr. Hurst contacted his supervisor. She authorized issuance of a Stop-Work Order and an Order of Penalty Assessment, which were served on the LLC on July 20, 2012. No Stop-Work Order or Order of Penalty Assessment was served on CGKB. The LLC also received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on July 20, 2012. The Department requested business records from June 29, 2012 (the date the LLC was made active with the Department of State), until July 20, 2012. Mr. Hurst testified that he issued the Stop-Work Order to Custom Granite Kitchens and Baths, LLC, instead of Sherman Yarbrough because, in addition to the information from Ms. Laws, “the business card I was given stated Custom Granite Kitchens and Baths, and I verified on the corporate website that Custom Granite Kitchens and Baths, LLC, was an active company.” Department of State records also indicated that “Custom Granite Kitchens and Baths” was registered as a fictitious name owned by Mr. Yarbrough, but there was no evidence as to whether Mr. Hurst was aware of that fact at the time. Shortly after Mr. Yarbrough left the Payroll Services office on July 20, 2012, Ms. Tucker delivered the employment documents of Mr. Tucker and Mr. Chapman to Ms. Laws. Ms. Laws filled in the bottom portion of Mr. Tucker?s I-9 form. She indicated the “Business or Organization Name” as “Custom Granite Kitchens and Baths, LLC, Panama City.” Ms. Laws testified that she did this based upon the statements of Mr. Yarbrough earlier that day that he was transferring CGKB into the LLC. She stated that Mr. Yarbrough did not specifically tell her that the LLC was Mr. Tucker?s employer and that this was an assumption on her part. Ms. Laws did not have the Florida driver?s license information and social security number filled out on Mr. Tucker?s I-9 form, and so his paperwork was not immediately faxed to ASM. Ms. Tucker gave that information to Ms. Laws the following Monday, and Ms. Laws then completed the form and faxed it to ASM on July 23, 2012. Ms. Laws also filled in the bottom portion of Mr. Chapman?s I-9 form. She filled in the “Business or Organization Name” information with “Custom Granite Kitchens and Baths, Panama City.” Ms. Laws did not explain why she did not put the LLC as the business on Mr. Chapman?s form as she had on Mr. Tucker?s. Mr. Chapman?s forms were faxed to ASM shortly after Ms. Tucker dropped them off. On July 23, 2012, Mr. Hurst called Ms. Laws to see if she had received any new employee paperwork. She stated that she had, and sent him the documentation. ASM later confirmed to Mr. Hurst that they had received the paperwork for Mr. Tucker and Mr. Chapman, and that they were now covered as employees. The employee list from ASM dated July 23, 2012, shows Mr. Johnson, Mr. Tucker, and Mr. Chapman all listed as employees of Sherman Yarbrough, all with a “Hire Date” of July 23, 2012. Mr. Galindo, Mr. Rustad, Ms. Tucker, and Mr. Yarbrough also continued to be shown as employees of Sherman Yarbrough. In checks prepared by ASM on Monday, July 23, 2012, and dated July 24, 2012, Mr. Johnson was paid for 36 hours of work, Mr. Tucker was paid for 27 hours of work, and Mr. Chapman was paid for 20 hours of work. As the president of ASM, Mr. James Moran, testified, ASM would pay employees retroactive wages to make sure the taxes were accounted for properly. He attributed the work hours to days prior to July 23, 2012, and testified that because of the number of hours, it was reasonable to assume that these three men were working on July 20, 2012, or before. Mr. Moran testified that he received payment for ASM?s services for these hours from Mr. Yarbrough, and that insurance premiums were paid to the workers? compensation carrier, Castle Point, for this period of time. He also testified, however, that all three men were only accepted as ASM employees on July 23, 2012. CGKB did not meet its responsibility to secure workers? compensation for Mr. Tucker and Mr. Chapman until July 23, 2012. The LLC did not meet its responsibility to secure workers? compensation for Mr. Johnson until July 23, 2012. On July 26, 2012, Mr. Yarbrough signed the Election of Proceeding Form on behalf of the LLC, stating that there was a dispute of the material facts alleged in the Stop-Work Order. Respondent did not respond to the Request for Business Records for Penalty Assessment Calculation. Mr. Hurst referred the file on the LLC to the Department?s Penalty Audit Section so that the penalty could be imputed. A letter on ASM letterhead dated August 3, 2012, and addressed to Mr. Michael Chapman indicated that ASM had been notified that Mr. Chapman was “no longer employed at Sherman Yarbrough as of 7/17/2012.” This was the same date that had been indicated as the “Original Date of Hire” on Mr. Chapman?s ASM Employee Enrollment Paperwork form. There was no testimony explaining how he could have been terminated on a date prior to his acceptance as an ASM employee on July 23, 2012, or the reasons for his termination. Mr. Yarbrough submitted the Election of Proceeding form and a letter to the Department stating: The company in question, Custom Granite Kitchens and Baths, LLC has no employees. This company was just founded and has no activity of any kind in the State of Florida. This matter has been a mistake. The Election form and letter were received by the Department on August 9, 2012. Respondent was served with an Amended Order of Penalty Assessment from the Department on August 9, 2013. Mr. Yarbrough filed another Election of Proceeding dated August 10, 2012, again requesting a formal hearing, which was received on August 16, 2012, by the Department. Sometime in August, Mr. Burchell asked Mr. Yarbrough not to come back to the Mexico Beach property and SSI hired someone else to finish the job. Mr. Burchell testified that he believed Mr. Yarbrough and his company were not large enough to handle a project of the size SSI was pursuing. He said the termination had to do with timeliness more than any failure to obtain workers? compensation coverage. A check dated August 17, 2012, made out to the order of Sherman Yarbrough and drawn on the account of SSI-MDI Mexico Beach, LLC, was received as final payment for the construction work CGKB performed on the Mexico Beach property. The name and address shown on the check were Sherman Yarbrough, Custom Granite Kitchens and Baths, 1210 West 15th Street, Panama City, Florida. In a letter dated August 24, 2012, ASM notified Mr. Yarbrough that the agreement between ASM and CGKB was terminated as of August 7, 2012, “for failure to report, run, and/or pick up payroll.” It went on to say that all certificates of insurance issued on CGKB?s behalf had been cancelled. Separate letters on ASM letterhead with the same date and addressed to Mr. Nick Tucker and Ms. Marion Tucker indicate that the “leasing agreement between American Staff Management IV, Inc., (ASM) and Sherman Yarbrough dba Custom Granite Kitchens has ended.” The letter goes on to explain that the recipients of the letter were no longer covered under ASM?s workers? compensation policy. On October 26, 2012, Mr. Yarbrough and Mr. Johnson entered into a Lease/Purchase Agreement. Mr. Yarbrough leased Mr. Johnson “Custom Granite Kitchens and Baths dba and Custom Granite Kitchens and Baths, LLC.” The Agreement provided for the transfer of equipment and supplies, as well as arrangements for Mr. Johnson to pay Mr. Yarbrough $300.00 per job, with a minimum of six jobs per month, for a period of 36 months. After this lease period of three years, Mr. Johnson would become the owner. The agreement itemized several items of equipment and stated, “Sherman Yarbrough will maintain the Cabinet Division of Custom Granite Kitchens & Baths, LLC.” It also provided, “Sherman Yarbrough will continue to sell granite for the Granite Division during promotion of the Cabinet Division at no commission other than the $300.00 per job as set forth in this agreement.” Respondent received the Second Amended Order of Penalty Assessment from the Department on February 26, 2013, assessing a penalty for violation of the Stop-Work Order. Mr. Hurst had concluded from the Lease/Purchase Agreement that the LLC was in violation of the order because it conducted several activities. Mr. Hurst testified, “It wrote the contract up, he signed the contract, and it also stated in the contract that the division of the –- the Granite Division and the Cabinet Division of Custom Granite Kitchens and Baths, LLC, was active and was continuing to remain active.” The Department referred this matter to the Division of Administrative Hearings on March 5, 2013, about seven and a half months after the Stop-Work Order was served. After taking a telephonic deposition of Mr. Johnson, the Department determined that he had been employed by the LLC and did not have workers? compensation coverage. The Department prepared a Third Amended Order of Penalty Assessment. Respondent was provided with a copy of the proposed Third Amended Order of Penalty Assessment on June 5, 2013. None of the employees listed in the penalty worksheets included with any of the Orders of Penalty Assessment can be classified as independent contractors, as defined in section 440.02, Florida Statutes. Mr. Johnson was an employee of the LLC on July 20, 2012, and before. The Department did not prove that Mr. Chapman or Mr. Tucker were employees of the LLC at any time between June 29, 2012, and July 20, 2012. Evidence showed that Mr. Chapman and Mr. Tucker were instead employees of CGKB on July 20, 2012, and before. The LLC did not secure workers? compensation coverage for Mr. Johnson before July 23, 2012. The LLC did not engage in business operations on October 26, 2012. The parties stipulated that the Department assigned the appropriate class code and manual rates from the National Council on Compensation Insurance, Inc., SCOPES Manual. The parties stipulated that if the charged violations were proven, the penalty amounts calculated by Petitioner in the Penalty Assessments were accurate.

Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers? Compensation, enter a final order determining that Custom Granite Kitchens and Baths, LLC, violated the requirement in chapter 440, Florida Statutes, that it secure workers' compensation coverage for Mr. Calvin Johnson, and imposing upon it a total penalty assessment of $1,000.00. DONE AND ENTERED this 23rd day of July, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2013.

Florida Laws (9) 120.569120.57440.02440.10440.105440.107440.13440.16608.701
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DOUGLAS L. ADAMS vs. DEPARTMENT OF CORRECTIONS, 85-003728RX (1985)
Division of Administrative Hearings, Florida Number: 85-003728RX Latest Update: Dec. 27, 1985

Findings Of Fact Douglas L. Adams is an inmate at Union Correctional Institution. On August 26, 1985, he was awakened early in the morning and brought before a disciplinary hearing for an alleged violation of institutional rules and regulations. Prior to the hearing, he was advised by a correctional officer to pack up all his personal property and to bring it with him to the hearing. Mr. Adams took with him as much as he could which included his clothing and other personal effects, but he was unable to carry all he owned with him at one time. He did not ask for either help in carrying his property or a cart to carry it in prior to leaving his cell area to go to the hearing. When he arrived at the movement center where the hearing was to be held, he advised the authorities there that he did not have all his property with him. At that point, he asked for help or the use of a cart to go get the rest of his property but he was refused because no cart was there. As a result, he went to the hearing leaving some of his property in his cell area and while in the hearing, contends he was required to leave his property in the control center. This property was secured in a storage room behind the control center which, while not locked, was not available for access to other inmates unless they were accompanied by a corrections officer. When the hearing was over and Mr. Adams, who had been directed to administrative confinement requested to go back to his former cell area to get the rest of his property, his request was refused. His property was inventoried by UCI personnel at that time, but because in his opinion the inventory was not complete, Mr. Adams refused to sign the form. When he was released from administrative confinement he claims he did not get all his property back. He relates that he was told he had forfeited whatever property he had not brought to the hearing. As a result, he filed a complaint on September 16, 1985, which was subsequently denied. Petitioner has been incarcerated in 7 or 8 institutions within the Department of Corrections including Florida State Prison, River Junction Correctional Institution, Baker Correctional Institution, Polk Correctional Institution, Old Unit, the Reception and Medical Center, and DeSoto Correctional Institution. At each one of these institutions a rule similar to this one was in existence. At Baker Correctional Institution, the inmate was required to bring his mattress as well. Robert Craig has been in prison for a total of 27 years and has been incarcerated in almost every major penal institution in the State of Florida that was built prior to the last five years. At Avon Park Correctional Institution he underwent a disciplinary hearing and was told at the time to bring all his personal property with him to the hearing. While in the hearing, he was required to leave all his property outside in the hall. At Cross City Correctional Institution the guards took him to the hearing without his property, bringing his property along afterwards. In essence, at all the institutions where he was incarcerated, there was some variation of the same procedure regarding his personal property. He either had to bring it to the hearing or it was packed up prior to the hearing. At no institution was his property inventoried prior to the hearing. As a result, he has lost personal property including a calculator for which he was subsequently reimbursed by the institution. According to Mr. Craig, if the inmate does not bring his personal property with him he either is given a deficiency report or is precluded from going back to get it when the hearing is over. Sgt. Denmark has worked for approximately 8 1/2 years with the Department of Corrections, all at UCI, where he formerly worked at the movement center. One of the functions he performed there was to handle prisoners coming for a disciplinary hearing. The rule as explained to him regarding the inmates' personal property is that the inmate is required to bring all of it with him to the hearing. Once the property is brought with the inmate to the hearing, the inmate is free to either take it into the hearing with him or to leave it in the storage room in back of the movement center during the hearing. If the inmate is sentenced to disciplinary confinement as a result of the hearing, in that case, and at that point, the inmate's property is inventoried. If the inmate is not sentenced to disciplinary confinement, the property is returned to the prisoner who is returned to his area. In the instant case, Mr. Denmark heard the Petitioner tell Sgt. Howe, when he arrived at the movement center, that he had left some of his property in his cell. However, when Adams went into his hearing, he neither took his property with him nor requested that it be secured. According to Mr. Cunningham, the Chief Classification Supervisor, the Union Correctional Institution Policy, (85-52.9 B1) requires inmates to bring all their property to disciplinary hearings. It is an old policy, and the reason for it is to protect the property from theft. In a disciplinary hearing, there is a chance that an inmate might not get back to his old cell to retrieve his property after the hearing. For security reasons, institution officials prefer not to take a prisoner back to his old cell after a hearing because, at that point, he is often angry as a result of the hearing and disruptive. All Department of Corrections' institutions in the region incorporating UCI, except Florida State Prison, have a similar policy. Inquiry of corrections personnel at the agency headquarters in Tallahassee reveals that most major DOC facilities have a similar policy. There are a total of 33 other facilities which hold less than 100 inmates each. These smaller institutions do not, generally, have a similar policy and Florida State Prison has a different situation because of the different security problems. It is the needs of the institution, however, which determine the use of the policy. Mr. Cunnningham is aware of Mr. Adams' hearing and the complaint filed as a result thereof. Upon inquiry it was determined that Mr. Adams had failed to establish a loss and the complaint was denied. Mr. Cunningham does not know whether there was an investigation into the loss of the property left in the cell. It is Mr. Cunningham's understanding that if the witness cannot carry all his property at one time, normally, if the inmate asks for permission to do so, he will be allowed to go back and get the balance before the hearing. This is not in the procedure approved by DOC, however, nor in the IOP at UCI. Corrections Officer Howe is also aware of the fact that Mr. Adams had a hearing on August 26, 1985. He, in fact, was called to the movement center to escort several prisoners, including Adams, to the confinement barracks after the hearings. A part of this duty involves inventorying the prisoners property. Howe told Adams to get his property and bring it in for inventory. At this point, after the hearing Adams said he did not have all his property with him and asked to be taken back to his old cell to get the rest. Howe declined to do this and explained the security reasons for his decision to Adams. He did advise Adams, however, that he would call down to Adams' old cell area and have his property packed which, in fact, he did. It is standard practice at UCI, according to Howe, that if an inmate has a large amount of property, he can request the use of a cart or wheelbarrow which is assigned to each housing area for carrying this excess property. This cart will be returned by a runner who can also help carry the excess. To his knowledge, inmates are not denied the use of these carts. Howe declined to return Adams to his old cell area after the hearing because, at the time, Adams was belligerent and unstable and presented a security risk in his opinion and also, because Adams had previously been advised to bring all his property with him and had failed to do this even though there was a way for him to accomplish it.

Florida Laws (4) 120.52120.54120.56120.68
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ISABEL MACHIN vs DEPARTMENT OF LAW ENFORCEMENT, CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, 89-006684 (1989)
Division of Administrative Hearings, Florida Filed:Miami, Florida Nov. 28, 1989 Number: 89-006684 Latest Update: May 15, 1990

The Issue The central issue in this case is whether Petitioner's application for certification as a correctional officer should be approved.

Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On or about January 1, 1989, Petitioner was employed as a probationary employee with the Dade Correctional Institute (DCI) in Miami, Florida. The DCI is a twenty-five acre compound which houses approximately 944 inmates. The compound is comprised of eight dormitories, vocational shops, an educational building, two dining hall satellites, and a main dining hall. For each work shift, correctional officers are stationed within each dormitory, along the perimeter area, inside the radio control room, and throughout the grounds. The minimum number of correctional officers required for each shift is Because of the limited number of officers on-duty during a given shift, their responsibilities, and security considerations, it is imperative that correctional officers maintain a level of detachment from inmates. Petitioner was aware of this mandate at the time of her employment with the DCI. On or about January 19, 1989, Corrections Officer Garnett instructed the Petitioner to perform an inventory with an inmate, DeMarco, to verify state property numbers. Later in the day, when Officer Garnett questioned DeMarco regarding the inventory sheet, she was told that Petitioner had directed another inmate, Williams, to perform the inventory. Since this was contrary to the original instructions, Officer Garnett contacted the Petitioner by radio to determine the location of the inventory sheet. At that time Petitioner informed Officer Garnett that the inventory was complete and that the sheet was in her pocket. When confronted in person and directed to produce the inventory sheet, Petitioner admitted she had given the inventory work to inmate Williams, that the inventory was not completed and that she had misrepresented the matter. Subsequently, the inventory was retrieved from Williams. Inmates are not normally allowed access to the DCI clothing room. Officer Garnett had authorized inmate DeMarco to assist Petitioner with work in the clothing room. Inmate Williams was not authorized to work the clothing room. Petitioner allowed inmate Williams access to the clothing room. Initially, Petitioner denied having done so, but later recanted and admitted that she had allowed inmate Williams to assist her in the clothing room. Personal relationships between correctional officers and DCI inmates are prohibited. Petitioner was counseled on numerous occasions about the rules and procedures which prohibit discussions of a personal nature with inmates. Fraternization is considered a serious security breach for which an officer may be terminated from employment. On or about January 23, 1989, Petitioner admitted she had had personal discussions with inmates (including inmate Williams) but assured Major Thompson that she would refrain from such conduct in the future. Petitioner continued to have personal conversations with inmates after the counseling session of January 23, 1989. Specifically, Mr. Callahan witnessed a personal conversation between Petitioner and inmate Williams which took place within a dormitory that inmate Williams was not assigned to be in. Later, Petitioner wrote a love note to inmate Strausser which was found at her duty post. A search of inmate Strausser's cell revealed he had possession of Petitioner's home telephone number. Petitioner initially denied her relationship with inmate Strausser but later told Major Thompson that they are engaged to be married. Petitioner's employment with DCI was terminated in June of 1989. Contrary to Petitioner's belief, she is not certified as a correctional officer. Petitioner has, however, completed all - educational/training requirements to become certified.

Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's application for certification as a correctional officer. DONE and ENTERED this 15th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6684 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: Paragraphs 1 through 5 are accepted. With the date being corrected to January 19, 1989, paragraph 6 is accepted. Paragraphs 7 through 19 are accepted. Paragraphs 20 and 21 are rejected as hearsay or irrelevant. To the extent that Petitioner admitted having inmate Williams in the clothing room to, Major Thompson, paragraph 22 is accepted. Paragraphs 23 through 25 are accepted. Paragraph 26 is rejected as irrelevant. Paragraphs 27 through 28 are rejected as irrelevant. Paragraphs 29 through 37 are accepted. Paragraph 38 is rejected as irrelevant. Paragraphs 39 through 54 are accepted. Paragraph 55 is rejected as irrelevant. Paragraph 56 is accepted. Paragraphs 57 through 59 are accepted. COPIES FURNISHED: Isabel Machin 9411 S.W. 4th Street Apartment 201 Miami, Florida 33174 Elsa Lopez Whitehurst Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Florida Laws (1) 943.13
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CURTIS HEAD, JOE LEWIS HOLLAND, DENNIS NEARY, AND DOUGLAS L. ADAMS vs. DEPARTMENT OF CORRECTIONS, 83-003748RX (1983)
Division of Administrative Hearings, Florida Number: 83-003748RX Latest Update: Feb. 14, 1984

The Issue This case concerns the issue of whether Baker Correctional Institution Operating Procedure 78-0-3, requiring a V-68 series lock is an invalid exercise of delegated legislative authority. This rule challenge proceeding was initiated by the fIling of a petition to determine the invalidity of a rule on December 5, 1983. By order of assignment, this case was assigned to the undersigned Hearing Officer on December 12, 1983, and the formal hearing was held on January 5, 1984. At the formal hearing, the Petitioners called as witnesses William M. Ellis, Michael R. Odom, and Melvin Davis. Petitioners Dennis Michael Neary, Curtis Head, and Joe Lewis Holland testified on their own behalf. The Petitioners offered and had admitted into evidence Petitioners' Exhibit No. 1 and 2. Respondent presented no evidence. Petitioners and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.

Findings Of Fact The Petitioners are inmates, who at the time of hearing were incarcerated in Baker Correctional Institution, Olustee, Florida. Baker Correctional Institution is a prison operated and maintained by the Department of Corrections. The Superintendent of Baker Correctional Institution has issued Institutional Operating Procedure which provides in part that each inmate may have as a part of his personal property "1 Each Combination Lock (Master V-68 Series) . These locks are used by the inmates to secure their personal storage lockers where authorized valuables and personal property items of the inmate are stored. This operating procedure was first issued on August 1, 1978, and revised April 29, 1983. No evidence was presented as to the provisions contained in the operating procedure prior to its revision on April 29, 1983. There is no exception to the requirement that the lock be a "Master V- 68 Series." This lock is required because a master key permits the institution personnel to inspect the contents of an inmate's locker at any time. The Superintendent considers a key lock to be a security problem because it would better enable an inmate to hide a weapon or contraband in his storage locker. The policy contained in Operating Procedure 78-G-B is based upon the Superintendent's interpretation of those Policy and Procedure Directives listed in the referenQe portion of the operating procedure. That reference section includes: Florida Statutes, Chapters 20.315, 915.23, 944.09, 944.081 and 945.21 Department of Corrections Policy and Procedure Directive No. 3.01.01, 3.01.04 and 3.04.07 These Policy and Procedure Directives have not been promulgated as rules and are not contained in the Florida Administrative Code. The numbers assigned to these directives do not comport with the rules of the Department of State. These policy and procedure directives were not offered into evidence or made a part of the record by either party. The superintendent relied upon those statutory sections contained in the reference section as his authority for issuing the challenged operating procedure. Under Operating Procedure 78-G-3, inmates who transferred to Baker Correctional Institution who owned another type of lock were not allowed to keep the lock and were required to purchase a "Master V-68" type lock. If the inmate did not have sufficient funds to purchase such a lock, he was required to either leave his personal property with an institutional employee or keep it in his storage locker without a lock. Petitioner Joe Lewis Holland had a master keyed lock when he arrived at Baker Correctional. This lock is now being held by the property and receiving officer. When Petitioner Dennis Michael Neary arrived at Baker Correctional, he had a V-64 type combination lock. Petitioner Neary purchased his lock while an inmate at Cross City Correctional Institution. Cross City Correctional permits inmates to keep the locks they have when they arrive at that facility. As a result of not having a lock, some of Mr. Neary's personal property was stolen from his storage locker. Approximately December 10, 1983, after his property was stolen, Petitioner Neary received a V-68 type lock on loan from the institution. He had to return that lock no later than January 10, 1984. Mr. Neary has no living relatives to whom his unauthorized personal property can be sent. The policy of loaning locks to new arrivals is a new policy adopted in December, 1983. The Operating Procedure 73-G-3 had not at the time of hearing been revised to permit such a loan. Under this new policy, an inmate who does not have enough money to purchase a V-68 type lock will be loaned a V-68 type lock until he has earned enough to buy one or until the end of 30 days, whichever is shorter. The cost of the V-63 type lock is approximately $4.00. Petitioner Curtis Head arrived at Baker Correctional Institution on September 23, 1983. Upon arrival, he did not have a V-68 type lock and had to leave his valuable and personal property with the property and receiving officer for the two weeks it took him to obtain a V-68 type lock. The Master keyed lock belonging to Petitioner Holland was purchased by him while he was an inmate at Union Correctional Institution. He purchased the lock for $4.65. He was without a lock for 1 1/2 months after he arrived at Baker Correctional Institution. The locks that are being held by the property and receiving officer are held for a period of 30 days. If the inmate has not made arrangements to send the lock and any property held to a relative or friend within the 30 days, then the property is disposed of by the institution. When an inmate arrives at Baker Correctional Institution, the property and receiving officer inventories all the inmate's personal property. All unauthorized items such as a non V-8 type lock are not permitted Inside the facility.

Florida Laws (6) 120.52120.54120.56120.5720.315944.09
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JAMES K. SHEPHERD vs. DIVISION OF RETIREMENT, 87-003823 (1987)
Division of Administrative Hearings, Florida Number: 87-003823 Latest Update: Jun. 30, 1988

The Issue Whether James K. Shepherd is entitled to special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October, 1976?

Findings Of Fact Mr. Shepherd filed an Application for Employment dated September 12, 1960, seeking employment in the position of Equipment Operator I (Prison) with the Florida State Road Department, the predecessor of the Florida Department of Transportation. Mr. Shepherd began his employment with the Florida State Road Department on September 16, 1960. Mr. Shepherd completed and submitted an Application for Employment as a Relief Guard on September 19, 1960. Mr. Shepherd began his employment on September 16, 1960, with the State of Florida as an Equipment Operator I (Prison). He was assigned to the Bartow Road Prison. During the time that Mr. Shepherd was employed at the Bartow Road Prison, it was a multi-custody facility housing minimum, medium and maximum custody prison inmates. The inmates at the prison were employed in the maintenance of the roads. Inmates were escorted from the prison to job sites. If the inmate crew was made up of maximum custody inmates, the crew was accompanied by an armed guard. Generally, a maximum custody crew also included a truck driver (an Equipment Operator I) and a Road Foreman. If the inmate crew was made up of minimum or medium custody inmates, the crew was not accompanied by an armed guard. The crew was accompanied by a truck driver and, if available, a Road Foreman. The Road Foremen were responsible for supervising the work of the crew. Truck drivers (Equipment Operators) were responsible for operating the truck used to transport the crew and its tools. On April 15, 1964, Mr. Shepherd signed a Florida Merit System, Request for Classification Approval form which included the following description of Mr. Shepherd's duties while employed at the Bartow Road Prison: I am an equipment operator I. The duties of this job consist of: 90% A. Drive Dump truck. 5% B. Shoulder work; filling up washouts, etc. 5% C. Washing, polishing, lubrication of truck. On April 21, 1964, Mr. Shepherd's supervisor signed a similar form containing the same description of Mr. Shepherd's duties while at the Bartow Road Prison. Mr. Shepherd's primary responsibilities and duties while employed at the Bartow Road Prison consisted of the driving of a truck transporting prisoners to and from work sites and keeping the truck and tools with the prisoner crew. In addition to Mr. Shepherd's primary responsibilities and duties, Mr. Shepherd also carried out the following functions on occasion while employed at the Bartow Road Prison: Assisting the crew guard in maintaining custody and control of the prisoners. On some of these occasions, Mr. Shepherd was given one of the guard's weapons; Carrying weapons issued by the prison; Maintaining the safety of prisoners in and outside the prison; Assisting in the search for and apprehension of prisoners who escaped from the prison. On these occasions, Mr. Shepherd was issued a weapon. Finally, in addition to the responsibilities and duties listed in findings of fact 8 and 9, while employed at the Bartow Road Prison Mr. Shepherd was also required to work every third night and every third weekend in the prison, twenty-four hours a day. During these periods, Mr. Shepherd assisted in guarding the prisoners in the prison from the guard towers around the perimeter of the prison and inside the prison dormitory in the evening until approximately 10:00 p.m. Mr. Shepherd was armed while manning the guard towers. Mr. Shepherd was not armed when he was in the prison dormitory but he did supervise and control inmates when necessary. Mr. Shepherd also participated in foot patrols outside the perimeter fence of the prison. During the month of October, 1970, while employed at the Bartow Road Prison, Mr. Shepherd was kidnapped and taken hostage by a prisoner from a crew of prisoners under Mr. Shepherd's supervision and control. Mr. Shepherd was not armed at the time. The prisoner attempted to escape, threatened Mr. Shepherd with death and severe injury and forced Mr. Shepherd to drive the prisoner during his attempted escape. The escape was subsequently prevented by the Polk County Sheriff's Department. There was an eight-month period of time during Mr. Shepherd's employment at the Bartow Road Prison that Mr. Shepherd continuously exercised supervision and control over prisoners. During this period Mr. Shepherd was issued a weapon and rode in the guard's cage at the back of the truck. Mr. Shepherd was issued a commission from the Division of Corrections. This commission authorized Mr. Shepherd to "exercise supervision or control over State prisoners ..." The commission did not constitute an assignment to a guard position but it was necessary in order for Mr. Shepherd to carry out some of his responsibilities and duties while employed at the Bartow Road Prison. From September 16, 1960, until November 30, 1970, Mr. Shepherd was a member of the State and County Officer's and Employees' Retirement System. Effective December 1, 1970, Mr. Shepherd became a member of the Florida Retirement System. In January, 1971, Mr. Shepherd was promoted to the position of Road Foreman. At this time Mr. Shepherd was also transferred from the Bartow Road Prison to the LaBelle Road Prison. While employed as a Road Foreman, Mr. Shepherd's primary responsibilities and duties consisted of directing the activities of prisoner crews in working on the roads and supervising equipment operators and prison guards who accompanied him. Mr. Shepherd's primary responsibility and duty did not include the custody and restraint of prisoners. While employed as a Road Foreman, Mr. Shepherd occasionally assisted the guard responsible for guarding the prisoners. During Mr. Shepherd's employment as a Road Foreman, he was not required to spend any days or weekends at the prison. In June, 1972, Mr. Shepherd transferred to the Division of Corrections as a Correctional Officer I. Mr. Shepherd moved to Apalachicola Correctional Institute, in Sneeds, Florida. In August, 1972, Mr. Shepherd transferred back to the Department of Transportation as an Equipment Operator. He was assigned to the maintenance facility in Marianna, Florida. Mr. Shepherd remained in Marianna until December, 1973. At that time Mr. Shepherd was promoted to Road Foreman and transferred back to the LaBelle Road Prison. Mr. Shepherd remained at LaBelle Road Prison until October, 1976. At that time he transferred to the Department of Corrections. Mr. Shepherd's primary responsibilities and duties while at LaBelle Road Prison from December, 1973, to October, 1976, were essentially the same as during his employment at LaBelle Road Prison from January, 1971 to June, 1972. Mr. Shepherd remained with the Department of Corrections until his retirement. Effective March 1, 1987, Mr. Shepherd retired as a member of the Florida Retirement System. On May 5, 1987, Mr. Shepherd signed an Application for Special Risk Equivalent Credit. In the Application Mr. Shepherd sought special risk equivalent credit for his employment at the Bartow Road Prison from September 16, 1960, through January, 1971, and his employment at the LaBelle Road Prison from January, 1971, through June, 1972, and from December, 1973, through October 1, 1976. By letter dated July 10, 1987, Mr. Shepherd was notified by the Department that the Application signed by him on May 5, 1987, was being denied. The positions of Equipment Operator I (Prison) and Road Foreman which Mr. Shepherd held were not certified in compliance with Section 943.1395, Florida Statutes.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that James K. Shepherd's Application for Special Risk Equivalent Credit for the periods of employment from September 16, 1960, through June, 1972, and December, 1973, through October, 1976, be DENIED. DONE and ENTERED this 30th day of June, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3823 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2 & 4. 2 5. 3 8 & 9. 4 10. 5 15. 6 11. 7 12. 8 15. 9 16 & 17. 10 19. See also 1-18. 11 20 & 21. 12 22 & 24. 13 Hereby accepted. 14 26. 15 Not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Mr. Shepherd retired from the Florida Retirement System on March 1, 1987. 2-3 2 & 4. 4 1. 5 Not supported by the weight of the evidence. The application for Relief Guard was not filed "contemporaneously with the application for Equipment Operator. See 3. 6-7 Irrelevant to this proceeding. 8 6. 9 5. 10 Not supported by the weight of the evidence. See 17. 11 9. 12 10. 13-14 8. 15 14. 16 Hereby accepted. 17 13. 18-21 Hereby accepted. 22 13. 23-25 Hereby accepted. 26-28 Taken into account in the weight given to the evidence. 29 8. 30 5. 31 8. 32 9. 33 8. 34 17 & 18. 35 8. 36 8 & 9. 37 28. 38 Hearsay. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William A. Frieder Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Charles Tindell, Esquire Charles Tindell, P.A. Post Office Box 5666 406 North Wild Olive Avenue Daytona Beach, Florida 32018 =================================================================

Florida Laws (4) 120.57121.051121.0515943.1395
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AGENCY FOR HEALTH CARE ADMINISTRATION vs CASSELBERRY ALF, INC., D/B/A EASTBROOK GARDENS, 01-004658 (2001)
Division of Administrative Hearings, Florida Filed:St. Petersburg, Florida Dec. 05, 2001 Number: 01-004658 Latest Update: May 16, 2003

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

Florida Laws (4) 120.569120.57120.68415.102
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WILLIAM E. SHEARER vs DEPARTMENT OF CORRECTIONS, 92-002391RX (1992)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Apr. 20, 1992 Number: 92-002391RX Latest Update: Feb. 11, 1993
Florida Laws (3) 120.52120.57120.68
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GARY M. PICCIRILLO AND WINSTON LLOYD vs. DEPARTMENT OF CORRECTIONS, 83-003126RX (1983)
Division of Administrative Hearings, Florida Number: 83-003126RX Latest Update: Apr. 06, 1984

The Issue Whether Union Correctional Institution Operating Procedure No. 81-6, concerning inmate canteen coupon books, is an "unpromulgated rule" within the meaning of Section 120.52(15), Florida Statutes, rendering it an invalid exercise of delegated legislative authority.

Findings Of Fact Petitioners are prisoners Incarcerated at Union Correctional Institution, a prison operated by the Department the agency responsible for the state prison system. The parties stipulated that petitioners are Substantially affected by the challenged Union Correctional Institution Operating Procedure No. 81-6. Petitioners, who initially challenged several operating procedures and directives, have confined their attack to Union Correctional Institution Operating Procedure No. 81-6. This Operating Procedure, issued February 16, 1962, and revised October 2, 1981, Is titled "Inmate Canteen Coupon Books" and issued over the signature of the Superintendent of Union Correctional Institution. As authority for its issuance, two policy and procedural directives are referenced, neither of which is in evidence. The stated purpose of this Operating Procedure is: To establish the approved medium of exchange for inmates assigned to Union Correctional Institution; To establish procedures for obtaining coupon books for use in the Canteen System; To place responsibility for distributing and accounting for Canteen coupons; To place limitations upon inmates use of coupon books; To establish procedures for redemption of coupon books; and To identify disciplinary action relative to misuse of coupon books. (Petitioners' Exhibit No. 1) Paragraph 81-6.3A expresses the main policy of the Operating Procedure: A. Canteen coupon books shall be the approved medium of exchange for inmates at Union Correctional Institution. Currency, coins or other negotiable instruments in the possession of an inmate are contraband. (Petitioners' Exhibit No. 1) This Operating Procedure announces and purports to set Department policy for Union Correctional Institution. Canteen coupon books are declared to be the only approved medium of exchange for inmates. Currency, coins or other negotiable instruments in the possession of inmates are declared contraband. All currency, coins or negotiable instruments are removed from new inmates and credited to their individual trust accounts. Thereafter, inmates may draw up to $20.00 per week from their trust accounts, but only in the form of coupon books. Coupons may be redeemed in the canteen system but loose coupons will not be accepted. Inmates may not possess more than $25.00 worth of coupons--any excess is declared contraband. This Operating procedure also includes details regarding coupon books, coupon distribution, and coupon redemption. Finally, inmates are warned that failure to comply with the Operating Procedure may constitute a violation of institutional rules for which, presumably, sanctions may be imposed. (Petitioners' Exhibit No. 1) This written Operating Procedure applies to all inmates at Union Correctional Institution. It applies prospectively, and dictates the medium of exchange for inmates at the institution. It purports, in and of itself, to create rights and affect others; it is virtually self-executing, no exceptions or discretion in implementation is allowed. By its tone and language, it speaks with the force of a rule of law. The Department concedes that this operating procedure has never been adopted as a rule in accordance with the rulemaking procedures of Section 120.54, Florida Statutes.

Florida Laws (3) 120.52120.54120.56
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ALFREDO ROEBUCK vs DEPARTMENT OF CHILDREN AND FAMILIES, 19-002947RU (2019)
Division of Administrative Hearings, Florida Filed:Arcadia, Florida May 30, 2019 Number: 19-002947RU Latest Update: Jul. 02, 2019

Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Each Petitioner is a sexually violent predator, and collectively are persons subject to chapter 394, part V. Petitioners are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioners also claim that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioners do not allege that they are housed at FCCC pursuant to the Baker Act.2/

Florida Laws (15) 120.52120.54120.56120.68163.01186.50420.04339.175394.451394.457394.910394.911394.9151394.930394.932 DOAH Case (3) 19-2946RU19-2947RU19-2948RU
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