Findings Of Fact Petitioner and Respondent operate two of the four medical equipment suppliers located on Fowler Avenue in Fort Myers. The other two companies are Fort Myers Surgical Company and American Medical Oxygen Supply Company. Petitioner received an erroneous statement from Summit Medical Supplies, Inc., containing two invoice numbers for which Petitioner had no record. When asked for a copy of these invoices, Summit Medical Supplies, Inc., provided Petitioner with copies of invoices made out to Respondent, both of which had been marked paid on the face of the invoices. These two invoices were addressed to Home Oxygen Services and Medical Equipment, Inc., 4536 Fowler Avenue, Fort Myers, Florida (Exhibit 1). Petitioner's address is 3559 Fowler Avenue and the erroneous statement addressed to Home Medical Supplies, Inc., was sent to this address. On one occasion Petitioner received a call from Smalley Transportation regarding delivery of hospital beds to Petitioner which, it was soon discovered, were addressed to Respondent. In his testimony Shawn Bayes referred to several incidents involving customers and several incidents involving businesses which had contacted his company regarding equipment belonging to Respondent. None of these incidents had been observed by the witness but had been told to him by other employees. Timely objection to this testimony was made. On one occasion a suction pump had been delivered to a patient who later requested Petitioner to pick up equipment. Upon arrival it was learned Respondent had inadvertently picked up Petitioner's pump with the other equipment provided by Respondent. The suction pump was returned to the premises from which it had been picked up by Respondent. Respondent acknowledged there has been some confusion by customers regarding whose equipment they were using but that confusion was not limited to Petitioner and Respondent but also involved the other medical supply companies. Once explained to a customer, the confusion did not recur. All of the equipment supplied by the parties is clearly identified by tags on the property containing the name and address of the supply company. All of the medical equipment suppliers with businesses in Fort Myers supply similar equipment to predominantly elderly patients, approximately 50 percent of which are covered by Medicare. These patients are referred to the supplier by doctors, hospitals, and home health agencies.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Petition of Home Medical Equipment Company be dismissed. DONE AND RECOMMENDED this 12th day of April, 1985, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1985. COPIES FURNISHED: Shawn D. Bayes, President Home Medical Equipment Company 11899 90th Avenue North Seminole, Florida 33542 Vincent D. Sapp, Esquire Post Office Box J Fort Myers, Florida 33902 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
Findings Of Fact The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida. The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory problems. The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all. On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus. After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift. While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable. On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable. Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance. Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized. On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point. The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner. Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again. In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel. The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to cancel the Petitioner again on October 11 and not to use her again. Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services. The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995. During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Veronica Johnson, pro se 1724-A Buckingham Court Tallahassee, Florida 32308 Sue Willis-Green, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Are Petitioner’s outside water supply connections in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, and, if so, should Petitioner be assessed an administrative fine for such violation?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is permitted by the Department in accordance with Chapter 513, Florida Statutes, to operate the Peace River Campground, (Campground) which is a Recreational Vehicle (RV) Park (182 spaces) and a Mobile Home (MH) Park (15 spaces), annual permit number 14-010-97. The Campground’s water is supplied by a community public water utility company. Each RV and MH space has an outside water tap as required by Chapter 10D-26, Florida Administrative Code. Many of the outside water taps do not have a backflow or back-siphonage prevention device installed on them. On February 6, 1997, the Department conducted a routine inspection of the campground and determined that the campground was in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the required backflow or back-siphonage prevention. The citation required Petitioner to install backflow or back-siphonage prevention by February 28, 1997, the next scheduled inspection date. On February 28, 1997, the Department conducted a follow-up inspection of the Campground’s water system and determined that the alleged violation had not been corrected. Petitioner disagreed with the Department’s determination that the Campground’s water system was not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water system designed or constructed to prevent backflow or back-siphonage. On February 28, 1997, the Department issued a citation of violation (citation) to Petitioner alleging a violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water supply connection designed or constructed to prevent backflow or back-siphonage. The Campground’s water connections at each RV and MH site have water taps which are above ground and have standard water shut-off valves. The Campground’s water system has good water pressure of approximate 70-100 pounds pressure per square inch (psi). The Campground’s outside water taps are neither constructed nor designed to prevent backflow or back-siphonage in the event the water pressure drops to a point which would allow backflow or back-siphonage, such as if the water main feeding the Campground’s water system broke. If the water pressure in the Campground’s water system should drop allowing backflow or back-siphonage, hazardous material could possible be injected in the water system. Although there has never been a recorded incident of backflow or back-siphonage into the Campground’s water system, without the some type of backflow or back-siphonage preventer being installed there remains a potential for this to happen. The Campground’s outside water connections would not prevent backflow or back-siphonage under certain conditions and are not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code. There are six basic types of devices that are recognized by the Environmental Protection Agency and the engineering profession which prevent backflow and back-siphonage. These devices are: (a) air gaps; (b) barometric loops; (c) vacuum breakers--both atmospheric and pressure type; (d) double check with intermediate atmospheric vent; (e) double check valve assembler; and (f) reduced pressure principle devices. The Department does not mandate which device the Petitioner must install, only that a proper device be installed which will prevent backflow or back-siphonage. A hose bib vacuum breaker such as Department’s Exhibit 3 provide the minimum protection against backflow or back-siphonage and is considered acceptable for compliance with Rule 10D- 26.120(2) and (3)(a), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order assessing an administrative fine in the amount of $150.00. DONE AND ENTERED this 27th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1997. COPIES FURNISHED: Susan Martin Scott, Esquire Department of Health Post Office Box 60085 Fort Myers, Florida 33906 George Lempenau, pro se Peace River Campground 2998 Northwest Highway 70 Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
