The Issue The issue presented for decision herein is whether or not the Respondent failed to have in effect written procedures for the implementation of policies and procedures; failed to provide adequate training, staff, recreation areas and facilities as required pursuant to Sections 400.141 and 393.067(5), Florida Statutes, and Rule Sections 10D-38.08; 10D-38.19(2)(c) and (9), (10) and (12), Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. Petitioner, Department of Health and Rehabilitative Services, seeks to impose an administrative fine in the amount of $300 based on allegations set forth more particularly in its Administrative Complaint 1/ filed October 28, 1983, alleging, inter alia, that Respondent failed to have written procedures for the implementation of policies and procedures as enumerated in Rule 10D- 38.08, Florida Administrative Code; that Respondent filed to provide adequate inservice training or professional direct care and other personnel; failed to have recreation and facilities designed and constructed as required by Rules 10D-38.10 and failed to have age-appropriate recreation equipment and supplies to meet patients' direct interests and needs in sufficient quantities and varieties to carry out objectives of its program. Based thereon, it is alleged that Respondent violated minimal standards as required by Petitioner's rules and regulations under Chapters 393 and 400, Part I, Florida Statutes. Respondent, Woodhouse, Inc., has a license to operate Woodhouse, 1001 NE Third Avenue, Pompano Beach, Florida, an intermediate care facility for the mentally retarded. Woodhouse was newly established during approximately April of 1983. On May 17 through 18, 1993, Petitioner conducted a survey of the facility by personnel from its Miami Office of Licensure and Certification. Results of that survey revealed that Respondent did not have into effect written procedures for the implementation of its policies and procedures. These policies dealt with items such as health, hygiene, grooming, equippage and an absence of needed staff including a recreational therapist and a qualified mental retardation employee on its staff. On June 29, 1983, Petitioner conducted a re-survey by members of the initial team who surveyed Respondent's facility during May of 1983 and, at that time, most of the items cited as violations had been corrected. The areas needing improvement related to the specifics as to how the policies and procedures were to be implemented by Respondent. The other area cited as still being in noncompliance was the absence of a trained recreational therapist and a qualified mental retardation employee on Woodhouse's staff. Marcia Trivigno is the Executive Director in charge of the overall administration of Woodhouse. Ms. Trivigno is the person in charge of and who authored the Respondent's Procedures Manual and of making the ultimate decisions respecting the hiring of staff for Woodhouse. Ms. Trivigno compiled and authored the Respondent's manual by reviewing the Policies and Procedures Manual of two other area facilities and based on recommendations from Petitioner's staff. Following the Petitioner's initial survey during May of 1983, Ms. Trivigno made a good faith effort to correct all areas cited as deficiencies during the initial survey. Initially, Ms. Trivigno experienced difficulty securing a trained recreational therapist. She temporarily used a part-time recreational therapist who left the Respondent's staff to work full-time in another position. Ms. Trivigno was successful in hiring a recreational therapist on June 24, 1983, approximately five days prior to Petitioner's re-survey. Respondent's staff sought the advice and consent of Petitioner's survey team members and implemented, to the extent possible, the deficiencies cited as relates tot he Policies and Procedures Manual. (Testimony of Marcia Trivigno and Angela Catarino.) It is not unusual for a newly established intermediate care facility to be cited for multiple violations during an initial survey by Petitioner's staff. During the initial survey, members of Petitioner's staff advise a client as to problem areas and offer ways to correct or otherwise remedy problem areas. In those instances, the usual procedure is for a plan of correction to be implemented by members of the facility and the survey teams. (Testimony of Laverne Dixon, Petitioner's staff person in charge of the surveys conducted at Respondent's facility of 1983.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Administrative Complaint filed herein be DISMISSED. DONE AND RECOMMENDED this 30th day of May 1984 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 May 1984.
Findings Of Fact Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.
The Issue The issue is whether Respondent retaliated against Petitioner for filing a prior complaint with the Florida Commission on Human Relations (FCHR) in violation of Section 760.10, Florida Statutes (2006).
Findings Of Fact Respondent is an employer as defined by Section 760.01(7), Florida Statutes (2006). Respondent manufactures various animal-related products, such as horse tack and pet collars. Petitioner is an African-American female. Beginning on January 13, 2003, and at all times relevant here, Respondent employed Petitioner as a production-line assembler. Martha Robinson, a white female, has worked for Respondent for over 17 years. Ms. Robinson was Petitioner’s direct supervisor for most of the time that Petitioner worked for Respondent. JoAnn Lake is Respondent’s production manager. Ms. Lake was Ms. Robinson’s immediate supervisor. On December 27, 2005, Petitioner filed a charge of discrimination with FCHR. The charge alleged that Respondent had discriminated against Petitioner based on her race. On April 20, 2006, FCHR entered a Final Order dismissing Petitioner's discrimination charge. Respondent has a disciplinary point system which is described in Respondent’s Employee Handbook. Under the system, employees are assessed points for unexcused absences, tardiness, or leaving work early. Employees can recoup lost points after a 30-day period without a disciplinary occurrence. When employees accrue 20 points, they are subject to a three-day suspension. Employees are subject to suspension or termination the second time they accumulate 20 disciplinary points. All supervisors and Penny Peterson, Respondent's personnel director, are responsible for tracking the disciplinary-point totals for employees. Supervisors send Ms. Peterson a written notice every time they assess disciplinary points. When there is a discrepancy in the point total between the supervisors' records and Ms. Peterson's personnel records, Respondent first reviews supporting documentation. If the supporting documentation supports Ms. Peterson's calculation of points, her total point count becomes official. If the supporting documentation does not support Ms. Peterson's total, the supervisors' calculation of points becomes the official count. During Petitioner’s employment, Respondent issued Petitioner five verbal warnings and nine written warnings for accumulating too many disciplinary points. Petitioner typically carried a high balance of disciplinary points. On May 10, 2006, Respondent suspended Petitioner for three days for accumulating 22 points. When she returned to work, Petitioner thanked her supervisors for giving her a five- day vacation for Mother's Day. On July 27, 2006, Petitioner asked Ms. Robinson how many disciplinary points Petitioner had accrued. Ms. Robinson erroneously informed Petitioner that she had 14 points. Petitioner then left work before the end of her work day. Ms. Robinson subsequently assessed Petitioner an additional three points and sent the notice to the personnel office. Contrary to Ms. Robinson's records, Petitioner actually had 18 points on July 27, 2006. When Respondent assessed another three points for leaving work early, Petitioner had a total of 21 disciplinary points. On or about August 7, 2006, Ms. Robinson was on leave. Therefore, Ms. Lake informed Petitioner that she had 21 points and was due to be suspended. Petitioner protested the suspension, stating that she only had 17 points according to Ms. Robinson. Ms. Lake checked Ms. Robinson's records that showed Petitioner had 17 points. Ms. Lake sent Petitioner back to work and conferred with David Brakefield, the plant manager, and Ms. Peterson. Petitioner's personnel records confirmed that she had accumulated 21 disciplinary points. Ms. Lake enforced Petitioner's three-day suspension on August 8, 2006, through August 10, 2006. Petitioner had a doctor's excuse for missing work on August 11, 14, and 15, 2006. Petitioner returned to work on August 16, 2006. That same day, Petitioner informed Ms. Robinson that she was quitting her job because it was too stressful. Petitioner told Ms. Robinson that she was resigning based on her psychologist's recommendation. During the hearing, Petitioner presented no evidence, not even her own testimony, to contradict Ms. Peterson's point total, showing that Petitioner had 21 disciplinary points on July 27, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petitioner's charge of retaliation. DONE AND ENTERED this 15th day of August, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 15th day of August, 2007. COPIES FURNISHED: Brenda Lissimore Simmons 1818 Northwest Martin Luther King Avenue Ocala, Florida 34475 Garry D. Adel, Esquire Blanchard, Merriam, Adel & Kirkland, P.A. Post Office Box 1869 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denis Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the. administrative complaint, Respondent, Michael James Hanly, was a licensed registered nurse, license no. RN 78035-2. On or about November 18, 1987, the Board of Nursing entered a final order regarding disciplinary action against this Respondent. The final order found the Respondent guilty of improper conduct and specified the following penalties: The licensee shall pay an administrative fine of $500.00 within 6 months. The licensee is hereby placed on PROBATION for a period of two years, subject to the following terms and conditions: The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing. The licensee shall submit written reports to the Board, which contain the licensee's name, license number, current address, current employer's name, address and telephone number, and a statement by the licensee describing his nursing employment and performance These reports shall be submitted quarterly, as scheduled by the Board probation section. The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, courses in the following subject areas: medical ethical considerations and legal aspects of nursing within six (6) months from the filing of this Order. * * * While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by his employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by-the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates. Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation. Subsequent to the entry of the final order, the Respondent did not submit reports, did not complete the continuing education, and did not pay the administrative fine. On June 10, 1988, the Department wrote to the Respondent to notify him that the terms of the final order had not been met. This letter was received by the Respondent on June 14, 1988. On June 29, 1988, the Department again wrote to the Respondent to advise him that he was delinquent and in violation of the final order. This letter was received by the Respondent on July 12, 1988. Upon receipt of the correspondence described in paragraph 3, Respondent replied to the Department by stating that the matters addressed in the final order were on appeal to the district court of appeal. The Respondent did not pay the administrative fine nor seek additional time within which to comply with the remaining terms of the final order. Finally, the Department wrote to Respondent on July 22, 1988, acknowledged that the final order had been appealed, but informed Respondent that he was required to comply with the final order unless a stay were entered by the appellate court. Respondent did not obtain a stay from the appellate court and, as of the date of the hearing, had not complied with the terms of the final order entered November 18, 1987.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Nursing enter a final order which finds Respondent guilty of the violation alleged in the administrative complaint, imposes an administrative fine in the amount of $250, and lengthens the period of Respondent's probation to four years. DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida. Hearings Hearings JOYOUS D. PARRISH Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative this 5th day of July, 1989. APPENDIX TO THE RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. With regard to paragraph 3, it is accepted that the Respondent filed an appeal which was assigned case no. 88- 1069; whether that appeal was timely or complied with the provisions of Section 120.68, Florida Statutes, is unknown and not a part of this record. It is accepted that the parties, for purposes of the hearing, believed the appeal to be proper. Paragraphs 4 through 11 are accepted. The Respondent did not submit proposed findings of fact. An ex parte communication was submitted on June 19, 1989, which is rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Michael A. Mone' Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 M. James Hanly, R.N. Post Office Box 1472 Boynton Beach, Florida 33425 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact Upon consideration of the admissible oral and documentary evidence adduced at the hearing, the following relevant facts are found: By letter dated May 24, 1976, respondent was informed of petitioner's intention to impose an administrative fine against respondent in the amount of $2,000.00 for unacceptable violations of Chapter 400 of the Florida Statutes and Chapter 10D-29 of the Florida Administrative Code. The violations were found during a survey conducted on April 19 and 20, 1976, and during an appraisal visit by a professional nurse from petitioner's office on March 4, 1976. Among the violations cited were failures to provide protection of patients from neglect; failure to provide adequate and accurate nursing practices; failure to call for a physician when necessary and obtain orders for medication and treatment; administration of medication without a physician's direct order; failure to obtain the required services of at least two physicians to provide regular, consultative and emergency service to patients, failure to provide nursing service policies and procedures manuals meeting the total needs of patients; unsigned medical records; and inadequacy of records relating to monthly fire drills. The letter of May 24, 1976, is attached hereto and is made a part of these findings of fact the same as if fully set forth herein. Respondent does not contest the charges set forth in the May 24, 1976 letter and stipulates that, at the time of the investigations referred to therein, the deficiencies existed and the violations charged therein were true. The purpose for respondent's request for and appearance at the administrative hearing was to present evidence in mitigation of the amount of the proposed $2,000.00 fine. The majority of evidence presented by respondent was of a hearsay nature and thus is not sufficient in itself to support a finding of fact in this recommended order. Mr. Edward J. Brazil became employed with ORA Industries, Inc. on April 1, 1976, as Vice-President of Operations. Since that time, he and the organization have been working hard to upgrade the conditions and quality of patient care at Hospitality Care Center in Jacksonville Beach. Follow-up surveys conducted in June and later months in 1976 show that respondent has undertaken positive steps to correct the deficiencies noted in the May 24, 1976 letter. Most, if not all, of such deficiencies have now been corrected. Even though the financial condition of respondent's facility is poor, patient care is their first priority and respondent intends to continue its operation and to upgrade its staff and conditions.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that an administrative fine in the amount of $2,000.00 be imposed, against respondent for the violations of Ch. 400, F.S. and Ch. 10D-29, F.A.C., set forth in the letter dated May 24, 1976. Respectfully submitted and entered this 20th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Robert M. Eisenberg Department of Health and Rehabilitative Services P.O. Box 2417 F Jacksonville, Florida 32231 Mr. Edward J. Brazil Vice President of Operations ORA Industries, Inc. 225 Peachtree Street, N.E., Suite 1612 Atlanta, Georgia 30303
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact 10. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 17, 2009, the Amended Order of Penalty Assessment issued on May 19, 2009, and the 2nd Amended Order of Penalty Assessment issued on June 5, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
