Findings Of Fact Respondent, Geolen F. Mulroney, d/b/a Pompano Retirement Village (PRV), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF) at 501 S.W. 2nd Place, Pompano Beach, Florida. On July 20, 1984, three HRS inspectors performed a routine survey of PRV. One of the purposes of the survey was to determine whether PRV was complying with all HRS requirements relating to food and nutrition services. During the course of the survey, the inspectors noted the following relevant violations of HRS rules: The facility lacked documentation of food service policies and procedures for providing proper nutritional care of residents. (Rules 10A-5.20 and 10A- 5.24(1)(c)1.a., F.A.C.); The facility's menus did not meet nutri- tional adequacy requirements in two respects. (Rule 10A-5.20(1)(f), F.A.C); The main kitchen, dining room and food storage room were not maintained in a sanitary manner in six respects. (Rules 10D- 13.26(1), 10D-13.26(5)(b), 10D-13.28(1) and 10D-13.28 (2), F.A.C. ) Each of the foregoing constituted a separate violation of HRS rules.1 When the survey was completed, the inspectors reviewed all violations with PRY's owners and administrator and advised them that a resurvey would be taken within a reasonable period of time, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs. On August 3, 1984, a Corrective Action Plan was mailed by HRS to PRV which set out in detail the various violations found in the July 20 inspection. It also established a compliance date of September 2, 1984 for all corrections to be made. A resurvey of PRY's facility was made by an HRS inspector on September 10, 1984. The inspector noted that no corrections to items (3)(a), (3)(b) and (3)(c) had been made. Indeed, at final hearing respondent's representative acknowledged that this was true. Accordingly, it-is found that PRV failed to timely correct items (3)(a), (3)(b) and (3)(c) as required by the Corrective Action Plan. On January 17, 1985 a second follow-up unit to PRV was made by an HRS inspector to determine if all deficiencies had been corrected. At that time, the following deficiencies previously noted on July 20 and set out in detail in the plan of corrections mailed on August 3, 1984 were still found to be present: Posted menus were not dated. (Rule 10A- 5.20(1)(j), F.A.C.); Facility menus did not meet nutritional adequacy requirements. (Rule 10A-5.20(1)(f), F.A.C.); Menu items did not meet HRS standards. (Rule 10A-5.20(1)(g), F.A.C.); The dining room and food storage room were not maintained in a sanitary manner in four respects. (Rules 10D-13.26(1) and 10D- 13.28(1) and (2), F.A.C.). Each of the foregoing constituted separate violations of HRS rules.2 Respondent did not deny that the violations had occurred. It blamed the delay in correcting the deficiencies on cash flow problems and the fact that repairs took longer to complete than was anticipated. In addition, it pointed out that kitchen area renovations were underway when the deficiencies occurred, but conceded that it failed to request an extension of time to complete these renovations as suggested by the HRS inspector.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a)-(3)(c) and (7)(a)- (7)(d) of the two administrative complaints and that a $1,400 administrative fine be imposed, to be paid within thirty days after the date of the final order rendered in this proceeding. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1986.
The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of October, 1989.
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
Recommendation Based upon the findings of fact and conclusions of lawrecited above, it is recommended that the procedural deficiencies as to the timeliness of the review process be construed as an approval of petitioner's capital expenditure proposal to construct a 91-bed nursing home in Alachua County. DONE and ENTERED this 8th day of June, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Bradshaw, Jr. Post Office Box 6697 Birmingham, Alabama 35210 Douglas E. Whitney, Esquire Department of HRS District VII Office 1350 Orange Avenue Winter Park, Florida 32789 Art Forehand, Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301 Hugh V. Smith, Jr., Esquire 540 South Perry Street Montgomery, Alabama 36104
The Issue Two issues were involved in this case: Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race when it failed to promote him to the position of lead man in the Respondent's Public Works Department. Whether the Respondent unlawfully retaliated against the Petitioner by giving him written reprimands and unsatisfactory scores on job performance evaluations because of the fact that he filed an administrative charge of racial discrimination against the Respondent.
Findings Of Fact Petitioner is a black male approximately 35 years of age. Prior to returning to Florida, Nunn had worked all over the United States, to include Alaska, as a construction worker. Respondent is an incorporated city in Florida. The Petitioner was hired in 1988 as a temporary employee in the Respondent's Water and Sewer Department by Dennis Monroe, Director of Public Works. While he was a temporary employee, the Petitioner indicated to Mr. Monroe, that he wished to remain in the Respondent's employ. On October 1988 the Petitioner was hired in a full time position as a Laborer I, and began a 6 months probation period. At the conclusion of the Petitioner's initial six-month probationary period (in April 1989), he received a above satisfactory score on an Employee Performance Evaluation completed by Mr. Monroe (Respondent's Exhibit A). Mr. Monroe at that time promoted the Petitioner to the position of Laborer II. At about this time, the water department lost three of its senior employees, and Nunn was suddenly the most senior person in the water department. Nunn talked with Moore about a promotion, but Moore hired Mr. Edwin Krusemark, a while male, who had been a consultant on the city's system, to run the water and sewer department. Sometime after the completion of his probationary period in April 1989, the Petitioner asked Edwin Krusemark, Public Works Superintendent, for an additional helper to complete his job duties. Mr. Krusemark turned down this request, although two persons had been performing the duties now performed by Nunn. Mr. Krusemark stated it was his opinion that two men were not needed to do Nunn's job, although it had previously taken two men to do it. Nevertheless, both Monroe and Krusemark verbally complained to Nunn about his delays. Neither manager formally reprimanded the Petitioner or placed any documentation of the Petitioner's faults in the Petitioner's personnel file prior to September 27, 1989. Neither supervisor indicated to Nunn that his work was substandard and unacceptable prior to September 27, 1989. Nunn stayed in the water and sewer department, and learned a short time later that a new lead man position was free. He applied and was rejected again without an interview. The promotion went to a new employee, William Threet, who was a white male with no experience in public utilities. Mr. Krusemark recommended to Mr. Monroe not to promote Nunn because of his lack of supervisory experience. There was no evidence presented by Respondent that Mr. Krusemark knew anything about Nunn's experience, except at the City. Mr. Krusemark admitted his recommendation was based upon his observations of Nunn at Belleview. William Threet was hired as the lead man in September 1989, based in large part upon his 19 years of experience in construction and his experience in supervisory positions (Respondent's Exhibit C) outside of government. Nunn had to help Threet learn about the water and sewer functions after Threet was hired. Shortly before September 25, 1989, the Petitioner filed an administrative charge with the Florida Commission on Human Relations, alleging that he was refused the position of lead man because of his race. The Respondent learned of Nunn's charges on or about September 25, 1989, when the Petitioner gave a copy of the charge to the Respondent's Clerk. Nunn's file on or about September 25, 1989 contained no adverse personnel comments or actions. On September 27, 1989, Nunn received a letter of reprimand for not being available when he was "on call" for emergencies. When Nunn was rated in November 1989, an entire list of deficiencies had been retroactively placed in Nunn's file. These notes memorialized trivial complaints made earlier by Moore and Krusemark to Nunn about the cleanliness of Nunn's truck, and the quality and speed of Nunn's work. However, no appropriate warnings or corrective action had been taken contemporaneously with the incidents about which Monroe and Krusemark complained, except the letter of reprimand. On November 1989, the Petitioner received an unsatisfactory score on this evaluation which had been due in October. Nunn and was placed upon a 90- day probationary period for the purpose of notifying him of his performance deficiencies and allowing him time in which to remedy those deficiencies and improve his job performance (Respondent's Exhibits E and F). Subsequent to the November 1989 evaluation, several handwritten notes from Mr. Monroe and Mr. Krusemark regarding deficiencies in the Petitioner's job performance were placed in his personnel file (Respondent's Exhibits G, H, I, and J). There were no such handwritten documentation in Nunn's file to justify or substantiate the considerable list of "comments" attached to Nunn's November 1989 evaluation. The written reprimand and the November evaluation were in retaliation for Nunn filing the discrimination complaint about Threet's hiring. These were pretexual. In January 1990, the Petitioner filed another administrative charge, alleging that the September 27, 1989 reprimand, the November 1989 evaluation, and the subsequent handwritten notes had been issued to him in retaliation for having filed the original charge of discrimination against the Respondent. In March 1990, the Petitioner received another Employee Performance Evaluation, this one being a collaborative effort among Mr. Monroe, Mr. Krusemark, and Mr. Threet. The Petitioner's score on this evaluation had improved over that of the November 1989 evaluation, but it was still unsatisfactory (Respondent's Exhibit K). Rather than discharge the Petitioner, which the Respondent could have done at that point, the Respondent placed the Petitioner on a six-month probationary status (Respondent's Exhibit L). Shortly thereafter, the Petitioner requested and was granted a leave of absence to be with his son who had to undergo a heart transplant. The terms of this leave were ill defined because it was leave without pay. After an absence of approximately two months, the Petitioner reported to work one morning in June 1990. Because of the Petitioner's extended absence from his job, the Respondent had employed another individual to perform the duties previously performed by the Petitioner. On the day that the Petitioner returned to work, this individual was sent out to perform Nunn's regular duties, while Mr. Threet contacted Mr. Monroe to inform him that the Petitioner had returned to work. Nunn was instructed to replace a faucet and then report to Mr. Monroe's office downtown. Nunn asked why he was being asked to go to Monroe's office. Nunn could not obtain a complete answer as to why. Nunn replaced the faucet, but declined to go downtown to Monroe's office because he felt he was being pushed out and Nunn was afraid he would be victimized if he went down town to Monroe's office. He rejected Mr. Monroe's request to report to Monroe's office when Mr. Monroe would not clarify the need for the visit. At that point, the Petitioner submitted his voluntary resignation from employment. After leaving Belleview's employment, the Petitioner was unemployed for four months and received no employment benefits. He was then employed by Marion County Country Club for $4.75/hour for six months. He then found his current job where he makes $6.00, the same salary he made with Belleview.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order GRANTING in part the Petition for Relief, and awarding the Petitioner $5,380.00. DONE and ENTERED in Tallahassee, Leon County, Florida, this 7th day of November, 1991. STEPHEN F. DEAN 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 7th DAY OF NOVEMBER, 1991. COPIES FURNISHED: Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Reginal Nunn 1010 100th 467 Belleview, Florida 32620 Kenneth A. Knox, Esquire Fisher & Phillips Suite 2310 One Financial Plaza Fort Lauderdale, Florida 33394
The Issue Whether the Department of Revenue has violated the requirements of Section 120.54(1)(a), Florida Statutes, by failing to adopt the June 1998 edition of its Code of Conduct and the July 1995 edition of its Disciplinary Procedures and Standards as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the Prehearing Stipulation of the parties, the following findings of fact are made: Facts which the parties admitted and which required no proof1 The Department of Revenue is an agency within the meaning of Section 120.52(1), Florida Statutes. Ms. Obinyan was a career service employee of the Department until she was discharged on January 12, 1999. Ms. Obinyan has standing to challenge the June 1998 edition of the Code of Conduct Guidelines, Department of Revenue Policy Statement #1141-2 ("Code of Conduct"), and the July 1995 edition of the Disciplinary Procedures and Standards, Department of Revenue Policy Statement #1141-9. The Code of Conduct and the Disciplinary Procedures and Standards are official policy statements of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements of general applicability that are generally and equally applicable to all Department employees and were applicable to Ms. Obinyan when she was an employee of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that prescribe and implement policy. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that are intended by their own effect to require compliance. The Department has a policy and practice of requiring all of its employees to sign a written acknowledgement of receipt of the Code of Conduct and the Disciplinary Procedures and Standards and an acknowledgement that the employee understands that his or her violation of any of the conduct standards contained in the Code of Conduct or in the Disciplinary Procedures and Standards shall be grounds for disciplinary proceedings pursuant to the disciplinary action procedures contained in the Disciplinary Procedures and Standards. It is the Department's policy and practice to require its employees to comply with the procedures and standards reflected in the Code of Conduct and the Disciplinary Procedures and Standards. It is the Department's policy and practice, in administering discipline, to follow the disciplinary procedures set forth in the Disciplinary Procedures and Standards and to apply the disciplinary standards set forth therein to avoid disparity as to the type and severity of discipline administered for the violations specified in the Disciplinary Procedures and Standards. It is the Department's policy and practice to take disciplinary action in accordance with the Disciplinary Procedures and Standards when an employee violates the Code of Conduct or the disciplinary standards contained in the Disciplinary Procedures and Standards. The Department has taken disciplinary action against its employees, including Ms. Obinyan, pursuant to the disciplinary procedures and standards in the Disciplinary Procedures and Standards since its adoption in 1995. The Department has not adopted the Code of Conduct or the Disciplinary Procedures and Standards as rules or initiated the rulemaking process to adopt either of these statements as a rule. Additional facts established by the evidence The Code of Conduct compiles in one twenty-page document both conduct prescribed or proscribed in statutes and rules and conduct which is prescribed or proscribed by Department policy. It is not intended to be all-inclusive, but an employee is subject to disciplinary action if he or she fails to conform to the provisions contained in the Code of Conduct. The proposed Code of Conduct was submitted to the Governor and Cabinet, as agency head, for review prior to implementation. The Department's Disciplinary Procedures and Standards contain forty-five standards, and violation of any of these standards is grounds for disciplinary action. The disciplinary procedures must be complied with whenever discipline is to be administered to career service employees of the Department. The proposed Disciplinary Procedures and Standards were submitted to the Department of Management Services for approval prior to implementation, as required by Rule 60K-9.002, Florida Administrative Code. The proposed procedures and standards were approved by the Department of Management Services after they were reviewed for consistency with the standards of other agencies and after they were submitted to the American Federation of State, County, and Municipal Employees (AFSCME) for review and comment. The Code of Conduct and the Disciplinary Procedures and Standards do not apply to anyone other than the Department's employees and include disciplinary standards and conduct prescriptions and prohibitions unique to those employees. The provisions of the Code of Conduct and the Disciplinary Procedures and Standards are detailed and precisely describe the disciplinary procedures, disciplinary standards, and prescribed and proscribed conduct which govern the Department's employees.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Health Care and Retirement Corporation of America owns and operates some forty nursing homes and retirement centers in approximately six states. It currently has twenty-six applications pending for Certificates of Need to establish new nursing homes in Florida. In preparing each application, it has been necessary to provide HRS with information regarding the accessibility of the proposed project to low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups. The Certificate of Need application also requires an applicant to project revenues and utilization on the basis of types of patients (i.e., Medicaid, Medicare, insurance, private pay, and indigent) which the applicant expects to serve. Petitioner Whitehall Boca operates a nursing home located in Boca Raton, Florida. This facility is presently licensed for 69 skilled nursing home beds, and desires to expand the number of skilled beds. The patients at Whitehall Boca are 100 percent private pay patients. This petitioner has never served and does not intend to serve Medicare or Medicaid patients or the medically indigent. Its financing is conditioned upon serving only private pay patients. The entire concept of this facility is to provide services to those persons in the upper income bracket who wish to continue an elite life-style in their later years. Petitioner Health Quest Corporation presently has several applications pending for Certificates of Need to establish and operate nursing homes in Florida. It has been the practice and policy of HRS in the past to consider the issue of geographic and economic accessibility when reviewing applications for a Certificate of Need. As noted in Paragraph 1 above, the printed instruction and application form requires information from an applicant regarding the economic accessibility of the proposal to minorities and low income groups. In documenting the financial feasibility of a proposal, the applicant is required to include a projection of income and expenses on a pro forma basis for the first two years of operation. after completion of the project. In order to project income, an applicant would have to project the percent of its total revenue to be derived from Medicaid, Medicare, and indigent patients as opposed to private pay and third-party insurance pay patients. These projections are also required in providing information to HRS regarding the projected total facility utilization. Rule 10-5.11, Florida Administrative Code, lists twelve general criteria against which applications for a Certificate of Need are to be evaluated. More specific criteria for specific health services are also provided in later portions of that Rule. The first twelve subsections of Rule 10-5.11 generally track the statutory criteria set forth in Section 381.494(6)(c), Florida Statutes. Prior to the challenged amendment, Rule 10- 5.11(3), Florida Administrative Code, read as follows "(3) The need that the population served or to be served has for such proposed health or hospice services." As a result of another rule-challenge proceeding, the District Court of Appeal, First District, invalidated Rule 10-5.11, Florida Administrative Code, to the extent that it did not explicitly contain any criterion which addressed the extent to which an applicant could meet the needs of minority and low income persons. Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 430 So.2d 1 (Fla. 1st DCA, 1983). The court noted that Section 381.494(7)(a), Florida Statutes, (now Section 381.494(8)(a)) requires HRS rules to be in accordance with federal statutes, and that federal statutes and regulations require Certificate of Need agencies to consider the degree to which medically underserved persons, including low income and minorities, have access to the services under review. Comparing the federal "access" requirements with HRS's Rule 10-5.11(3) (cited in Paragraph 5 above), the Court concluded that that subsection was not broad enough to include consideration of the criteria mandated by federal regulation and allowed HRS to ignore the federally mandated "access" criterion. To that extent, the Court found Rule 10- 5.11 to be inconsistent with federal regulations and statutes, and thus invalid. In response to the Court's decision in Farmworker, supra, and in order to codify its prior policy and practice, respondent HRS seeks to amend Rule 10- 5.11(3), Florida Administrative Code, with the following language: "(3)(a) The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all resi- dents of the district, and in particular low income persons, racial and ethnic minorities, women, handicapped persons, other underserved groups and the elderly, are likely to have access to those services. The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care. The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particu- larly those needs identified in the appli- cable district plan and State health plan as deserving of priority. In determining the extent to which a proposed service will be accessible, the following will be considered: The extent to which medically underserved individuals currently use the applicant's services as a proportion of the medically underserved population in the applicant's proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved; The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community ser- vice, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant; The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and Tile extent to which the applicant offers a range of means by which a person will have access to its services. In any case where it is determined that an approved project does not satisfy the cri- teria specified in subparagraphs (3)(a) through (d), the Department may, if it approves the application, impose the condi- tion that the applicant must take affirmative steps to meet those criteria. In evaluating the accessibility of a proposed project, the accessibility of the current facility as a whole must be taken into consideration. If the proposed project is disapproved because it fails to meet the need and access criteria specified herein, the Department will so state in its written findings. In any case where a project does not satisfy the criteria specified in sub- paragraph (3)(a) through (d) above, the Department shall so notify in writing the applicant and the appropriate Regional Office of the United States Department of Health and Human Services." In preparing this proposed rule amendment, respondent reviewed and considered the "access" rules effective in eight other States, portions of the "Model Access Provisions for State Certificate of Need Statutes or Regulations" and the federal regulations and statutes. The language contained in subparagraphs 3(a) - (d)4 of the respondent's proposed rule substantially tracks the language contained in 42 C.F.R. Section 123.412(a)(5) and (6), with changes made only for clarity or to reflect the different terminology utilized in the Florida Certificate of Need program. The language contained in subparagraphs (e) and (f) of the respondent's proposed rule is substantially identical to the language in federal regulations 42 C.F.R. Section 123.413(b) - (d) and 42 C.F.R. Section 123.410(a)(6) (1982). The federal regulations require the States to adopt, and use as applicable, specific criteria based upon the general considerations set forth in 42 C.F.R. Section 123.412 (1982). An economic impact statement was prepared by respondent for proposed Rule 10-5.11(3). The respondent concluded that, other than the normal costs to the agency of processing a rule amendment, no economic impact was expected as a result of the amendment's implementation. As the estimated costs or economic benefit to persons directly affected by the proposed amendment, the economic impact statement provides: "The proposed amendment is not expected to have an additional economic impact on existing health care providers, health care consumers, or certificate of need applicants who prepared applications under existing rules. Previous and current certificate of need decisions by the department have been made in consideration of existing Federal regulations and the criterion contained in 10-5.11(3) has been interpreted in accordance with Federal regulations." It was noted that the proposed amendment would affect competition among providers and certificate of need applicants consistent with existing rules and the proposed amendments. After discussions with others charged with the responsibility of implementing the Certificate of Need program, and based upon her own experience as a health planner, the author of the economic impact statement explained the "data and method of estimating costs" as follows: "Immediate costs for implementing the pro- posed amendment were calculated based on cur- rent data available. Printing and distri- bution costs were based on similar experiences with HRS printing and distribution costs." This approach was utilized based upon the author's understanding that the proposed rule imposed no additional or new criteria for review of certificate of need applications.
