Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the record compiled herein, the following relevant facts are found. By its Administrative Complaint filed on August 10, 1981, Petitioner's district administrator notified Respondent that the Department intended to impose a civil penalty in the amount of two hundred dollars ($200.00) based on the fact that Respondent denied to one of Petitioner's employees the right of entry into Simmons Hesperides Home For The Elderly. Simmons Hesperides Home For The Elderly is an adult congregate living facility (ACLF) licensed to operate as such pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. The facility is located at 4710 Hesperides Street in Tampa, Florida. The facility was licensed as an ACLF on December 2, 1980. Petitioner's program specialist, Alice Adler, made a periodic visit to Respondent's facility on June 23, 24 and 25, 1981, to perform a routine check of Respondent's operation to determine compliance with the applicable rules and regulations of the Department. During the June, 1981, visits, Ms. Adler advised Respondent that she did not have on hand a seven-day supply of non-perishable food to meet nutritional needs of residents and she was, therefore, in violation of Rule 10A-5.10(1)(k), Florida Administrative Code. Ms. Adler memorialized this deficiency by completing a deficiency report, a copy of which was provided Respondent. Approximately one week later, on July 1, 1981, Ms. Adler made another check of Respondent's facility to determine if Respondent was in compliance with the above cited rule requirement, at which time Respondent denied Ms. Adler the right of entry into the facility. Ms. Weinchowski was thereafter advised that her failure to permit her (Ms. Adler) to enter the facility could result in the imposition of a civil fine. Ms. Weinchowski, the owner/operator of Simmons Hesperides Home For The Elderly admitted that she denied Ms. Adler the right of entry into the facility on July 1, 1981. Ms. Weinchowski voiced her opinion that she was being harassed by Ms. Adler and, therefore, she did not permit her to enter the facility on July 1, 1981.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department's notice of intent to impose a civil penalty in the amount of two hundred dollars ($200.00) upon Lea Weinchowski d/b/a Simmons Hesperides Home For The Elderly, be upheld. RECOMMENDED this 24th day of November, 1981, in Tallahassee, Florida. COPIES FURNISHED: Janice Sortor, Esquire Assistant District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Lea Weinchowski 4710 Hesperides Street Tampa, Florida 33614 JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1981.
The Issue The issue in this case is whether Respondent is guilty of violating various provisions governing adult congregate living facilities and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently licensed to operate an adult congregate living facility at 1822 Nebraska Avenue, Palm Harbor, Florida. On May 25, 1993, Petitioner's surveyor conducted an annual survey of the facility. Petitioner's surveyor noted several deficiencies on the survey report and gave Respondent 30 days within which to correct the deficiencies. Upon resurvey on September 13, 1993, the Petitioner's surveyor found nine deficiencies uncorrected. In addition, Petitioner's surveyor found uncorrected one deficiency that had been cited during a survey on August 4, 1993. On May 25, 1993, Respondent had three employees. Two of them had been employed at the facility for over 30 days. Their files contained no documentation showing that they were trained in infection control procedures. The third employee was new and had no personnel file. At the September 13, 1993 resurvey, the three former employees had been replaced by three new employees. Two of the new employees had received the required infection control training, although their statements omitted a copy of the license of the registered nurse who did the training. The file of the other new employee lacked any statement concerning infection control training. However, Petitioner failed to show that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. During both the May 25 and September 13, 1993 surveys, Respondent's sanitation inspection report was missing the second page, which would have listed violations and corrective actions regarding sanitation. On May 25, 1993, resident I. M. had been at the facility more than 30 days without a health assessment. On September 13, 1993, I. M. had been discharged, but four new residents had been at the facility more than 30 days without a health assessment. Petitioner failed to prove that the violation concerning I. M.'s health assessment was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent failed to document that a person duly certified in first aid was on duty at all times. A staff member identified as being alone at the facility on weekends had no personnel file. On September 13, 1993, two staff members identified on the staffing chart as being alone at the facility had no documentation of first aid training. On September 13, 1993, a third staff member who was left alone at the facility claimed to be a certified nursing assistant and therefore exempt from the first aid certification requirement. Respondent and the employee had no documentation to indicate that the employee was a certified nursing assistant. As noted above, the former employees were no longer employed at the facility on September 13. Petitioner thus failed to prove that the May 25 deficiencies concerning first aid certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, three employees at the facility had no statement that they were free of signs and symptoms of communicable disease. On September 13, 1993, one of the new employees had no such statement. The other two employees had statements, but they were signed by a registered nurse rather than an advanced registered nurse practitioner. Due to the turnover of employees, Petitioner failed to prove that the May 25 deficiencies concerning communicable- disease certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent kept a supply of nonprescribed, over-the- counter drugs, such as aspirin and milk of magnesia, that were not labelled for use by a particular resident. However, Respondent remedied the violation during the May 25 visit. On September 13, 1993, the surveyor found approximately six bottles of unlabelled, nonprescription over- the-counter medication. These medications had been brought by the family of a newly admitted resident. Respondent corrected the labelling deficiencies during the May 25 survey. Petitioner thus failed to prove that the May 25 labelling deficiencies were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993 Petitioner's surveyor found no activities calendar and, based on resident interviews and her observations at the facility, no evidence of significant activities being provided. On September 13, 1993, Respondent had an activities calendar, but it did not specify the starting time or duration of resident activities. Petitioner proved that deficiencies concerning the activities calendar were uncorrected during the applicable timeframe. On August 4, 1993, Petitioner's surveyor found in a resident's room a full-bedside rail, which was not ordered by a physician. On May 25, 1993, Petitioner's surveyor found, evidently in a different resident's room, a half- bedside rail, which was not ordered by a physician. Respondent presented a physician's order for a hospital bed, but mechanical bedside rails were not addressed in the order. Due to the involvement of different residents, as well as different types of restraints, Petitioner failed to prove that the May 25 deficiency concerning the full-bedside rail was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, the facility maintained a clearly inadequate supply of nonperishable food. During the September 13, 1993 resurvey, Respondent had significantly more nonperishable food on hand, consisting of 567.5 ounces of fruits and vegetables. The May 25 survey report informs Respondent only that he does not have on hand a one-week supply of nonperishable food. The survey does not calculate the amount of such food needed based on some formula. At the hearing, Petitioner's witness testified that the nonperishable food supply on September 13 was inadequate, based on a requirement of 16 ounces of fruits and vegetables per day for seven days for five residents. Based on the formula, Respondent needed a total of 560 ounces of nonperishable food on hand on May 25, 1993, when he had nowhere near an adequate amount. Under the formula, Respondent would have needed, on September 13, 1993, 784 ounces of nonperishable food because two more residents had been added to the facility. However, Petitioner failed to prove that 560 ounces of nonperishable food does not represent one week's supply for the seven residents at the facility on September 13, 1993. On May 25, 1993, Petitioner's surveyor found that one resident was residing at the facility without a signed contract. On September 13, 1993, at least one resident was without a signed contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of the violations set forth above and imposing a fine of $750. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 N. Dale Mabry Hwy. #100 Tampa, Florida 33614 James V. Vinson, Owner White House #1 1822 Nebraska Avenue Palm Harbor, Florida 34683 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact At all times material to the instant case, Respondent was licensed and regulated by Petitioner, having been issued license number 2330422. Respondent’s license authorizes Respondent to operate a public food service establishment known as Emily’s Restaurant No. 2 at 16 West Flagler Street, Miami, Florida (the specified location). At all times material to this proceeding, Respondent was operating a public food establishment at the specified location (the subject restaurant).2 At all times material hereto, Leonardo Hernandez was an experienced and appropriately trained investigator employed by Petitioner as a Sanitation and Safety Specialist. Mr. Hernandez’s job responsibilities included the inspection of public food service establishments for compliance with pertinent rules and statutes. Violations are classified as either critical or non-critical. A critical violation is one that represents an imminent threat to the general public. A non- critical violation is a violation that does not rise to the level of a critical violation. On April 18, 2006, Mr. Hernandez inspected the subject restaurant. Based on that inspection, Mr. Hernandez prepared a report that noted multiple violations of pertinent rules. Prior to leaving the premises on April 18, 2006, Mr. Hernandez discussed his findings with the owner of the restaurant. Mr. Hernandez found that critical and non-critical violations existed and ordered the owner to correct the violations. On May 22, 2006, Mr. Hernandez conducted a follow-up inspection of the subject restaurant for the purpose of determining whether the violations he had ordered corrected had been corrected. Petitioner proved that the following violations existed at the subject restaurant at the time of the initial inspection on April 18 and at the time of the follow-up inspection on May 22, 2006. PARAGRAPH 1 Section 3-302.11(1)(a) of the Food Code requires that raw meat be stored so that it will not contaminate ready-to-eat food. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had stored raw meat above ready-to-eat food in violation of the cited Section of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because of the manner in which Respondent stored the raw meat could have resulted in the contamination of the ready-to-eat food. PARAGRAPH 2 Section 5-202.12(A) and (B) of the Food Code requires that a hand-washing sink utilized by employees have hot water of at least 38°C (100°F). On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had no hot water at the hand-washing sink utilized by Respondent’s employees. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation. PARAGRAPH 3 Section 11.4.2 of the National Fire Protection Association requires restaurants to keep oven hoods clean so as to prevent the build-up of greasy or oily sludge. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to clean the oven hood and that greasy or oily sludge had built-up on the oven hood. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. Mr. Hernandez testified that this was a non-critical violation. PARAGRAPH 4 Section 4-204.112 of the Food Code requires that food storage units have a thermometer to measure ambient temperature and requires that the thermometer be located so that it is easily viewable. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent did not have a thermometer in a refrigerated food storage unit. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because of the possible danger to the public that might result from the storage of food at the wrong temperature. PARAGRAPH 5 Section 4-903.11(b) of the Food Code requires that clean equipment and utensils be stored so that they are either inverted or covered. On both April 18, 2006, and May 22, 2006, Mr. Hernandez observed that Respondent had failed to store glasses, cups, utensils, pots, and pans in compliance with Section 4-903.11(b) of the Food Code. Following the initial inspection, Mr. Hernandez warned Respondent’s owner as to this violation and ordered her to correct the violation. The violation had not been corrected as of the second inspection. This is a critical violation because it pertains to basic sanitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order that finds that Respondent committed the violations alleged in paragraphs 1 through 5 of the Administrative Complaint and imposes administrative fines against Respondent as follows: $1,000.00 for the paragraph 1 violation; $1000.00 for the paragraph 2 violation; $500.00 for the paragraph 3 violation; $1,000.00 for the paragraph 4 violation; and $500.00 for the paragraph 5 violation. In addition, the final order should require Respondent’s owner to attend, at Respondent’s expense, an educational program sponsored by Petitioner’s Hospitality Education Program. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of November, 2006.
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Florida Department of Health- Volusia (Respondent or FDOH-Volusia), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health services in Volusia County, Florida. Among the programs administered by FDOH-Volusia is the Women, Infants, and Children program (WIC). WIC is a federally-funded nutrition program, which provides healthy foods, nutrition education and counseling, breastfeeding support, and referrals for health care and community services. At all times relevant to this proceeding, FDOH-Volusia operated WIC health clinics in Daytona Beach, New Smyrna Beach, Orange City, and Pierson. Petitioner began working for FDOH-Volusia in June 2010, as a nutrition program director. In her capacity as nutrition program director, Petitioner was responsible for certain management activities of WIC. The State of Florida maintains close supervision of WIC. FDOH-Volusia is required to provide an annual Nutrition Plan (the Plan) to the State. The Plan is a report of WIC operations, sites, hours of operation, various objectives, local agency plans for increasing participation, local agency disaster plan, and staffing. As nutrition program director, Petitioner is responsible for preparing the Plan, and submitting it for revisions and/or final approval by FDOH-Volusia’s administrator. Ms. Boswell became the administrator of FDOH-Volusia on or about April 1, 2016. Dr. Husband, who is African-American, became Petitioner’s direct supervisor beginning in July 2016. As Petitioner’s direct supervisor, Dr. Husband provided oversight of WIC. In 2016, FDOH-Volusia consolidated its Deland and Deltona WIC offices into the office in Orange City. Petitioner was very involved in the move and was, during the period of the move, reassigned from her primary duties in Daytona Beach to duties in Orange City. By all accounts, the move went well. On September 23, 2016, Ms. Boswell requested that Petitioner meet with her and Dr. Husband to discuss the draft Plan provided by Petitioner on September 21, 2016, and for Ms. Boswell and Dr. Husband to provide comments, suggestions, and revisions to the Plan, which was due for submission to the State of Florida on September 30, 2016. The purpose of the meeting was to discuss the steps necessary to get the Plan in final form for submission. At the onset of the September 23, 2016, meeting, Ms. Boswell complimented Petitioner and her staff for getting DOH-Volusia’s new Orange City location “up and going.” Petitioner responded that “it’s good to hear something positive after so much negative.” The comment was directed at Dr. Husband, who Petitioner thought had been negative towards various aspects of her job performance. Petitioner’s comment led to tensions between Petitioner and Dr. Husband. Both said, at one time or another during the meeting, words to the effect of “don’t speak to me like that.” Ms. Boswell became a little uncomfortable with the interaction between the two. During the September 23, 2016, meeting, a number of deficiencies in the draft Plan were identified, including grammatical and syntax errors, discussion that did not align with the corresponding graphs, and a lack of data to support the Plan conclusions. Dr. Husband gave guidance and feedback on the Plan. Ms. Boswell indicated that, but for Petitioner’s comment regarding Dr. Husband’s negativity, the meeting was otherwise professional. At the hearing, Petitioner explained that Dr. Husband made other negative comments to her at various times, stating that at a meeting with the director of nursing regarding WIC work schedules, Dr. Husband said “we’re not going to nitpick”; and that on another occasion during a discussion on the difficulty of recruiting and retaining staff at base salary, Dr. Husband said to Petitioner “that’s the way you designed it.” According to Petitioner, Dr. Husband made similar comments to other of her direct reports. Dr. Husband testified at the hearing that she thought -- before and after the September 23, 2016, meeting -- that Petitioner was insubordinate, disrespectful to employees and supervisors, and rude. Petitioner would take meeting notes in red ink when she perceived instances of “negativity” and “unacceptable behavior” from her direct supervisor, which she described as her “red flag system.” Petitioner argued that since she “spoke up and spoke out” during the September 23, 2016, meeting, she has been the subject of retaliation by Ms. Boswell and Dr. Husband. She expressed her belief that Ms. Boswell was upset that Petitioner criticized Dr. Husband because Dr. Husband was Ms. Boswell’s direct report, i.e., that Petitioner’s criticism “was a reflection on her.” On or about October 5, 2016, Petitioner was informed that her duty station was being changed from Daytona Beach to New Smyrna Beach. Petitioner testified that she posed four questions to Dr. Husband as to the reasons for the transfer and that, in her opinion, Dr. Husband’s responses did not justify the action. Petitioner felt that as the WIC nutrition program director, she should be in Daytona Beach, the largest administrative office. Thus, Petitioner could think of no reason for the move other than retaliation for her criticism of Dr. Husband. Ms. Boswell testified credibly that the reason for Petitioner’s transfer was that New Smyrna Beach was reopening WIC services at the office. In light of how well things went with the opening of the Orange City office, she wanted Petitioner to go to New Smyrna Beach to make sure that location was up and running. She testified that the reassignment was not a punishment, rather, “that was her job” to make sure WIC was running well. Her testimony is credited. In addition to the fact that Dr. Boswell had perfectly legitimate reasons for having Petitioner cover the New Smyrna Beach office, it is clear that Petitioner suffered no adverse employment action as a result. Petitioner lives between Daytona Beach and New Smyrna Beach, and the New Smyrna Beach office is no further from her home than the Daytona Beach office. Petitioner’s pay was not changed, her title was not changed, and her benefits were not changed.1/ More to the point, Petitioner neither pled nor proved that the change in duty station had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On or about October 18, 2016, Petitioner received a Documented Counseling and Performance Notification (Documented Counseling) from Dr. Husband. The Documented Counseling included a number of deficiencies in performance, and several corrective measures. The deficiencies included: that Petitioner failed to monitor and spend allocated WIC funding during the 2015-16 fiscal year; that the Plan submitted by Petitioner was rejected by the administrator for lack of detail, grammatical errors, and poor work product, and when the Plan was finally completed it was discovered that Petitioner’s staff performed the majority of the work; that the WIC participation rate (65 percent) was significantly less than the program goal (85 percent); and that Petitioner failed to support efforts to refer WIC clients to the dental hygienist at the Orange City location. The Documented Counseling also reflected that Petitioner had been disrespectful to Ms. Boswell and Dr. Husband. Petitioner refused to sign the Documented Counseling to acknowledge her receipt. Petitioner provided excuses for the deficiencies noted, e.g., she used most of the allocated WIC funding; the draft Plan was mostly complete, and she had never before been required to submit a draft nine days before its final submission date; she was only required to increase WIC participation by four percent per year; it was not in the WIC scope of work to facilitate clients to get dental services, just to refer them; she objected to co-location of the dental hygienist in the WIC office and, in any event, referrals were not the responsibility of management, only staff. None of Petitioner’s explanations were convincing. Rather, the testimony of Ms. Boswell and Dr. Husband that the Documented Counseling was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the Documented Counseling had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On or about December 16, 2016, Petitioner received an oral reprimand. The oral reprimand noted that Petitioner violated prior instruction and FDOH-Volusia written policy regarding absence from work and reporting such absences to her supervisor by telephone. The oral reprimand was documented. Petitioner refused to sign the oral reprimand documentation to acknowledge her receipt. Petitioner acknowledged that prior notice of absences is important so that FDOH-Volusia could make sure personnel were available to perform clinical services. Despite Petitioner’s prior knowledge that she would not be at work on November 28, 2016, she did not call her supervisor, Dr. Husband, until after 8:00 a.m. on November 28, 2016. She left an earlier voicemail with a direct report. The testimony of Ms. Boswell and Dr. Husband that the oral reprimand was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the oral reprimand had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On April 12, 2017, Petitioner was required to participate in an investigatory interview to determine why she was absent from her duty station on numerous occasions between January 4, 2017, and April 10, 2017. Petitioner testified that she saw no problem in coming to work late since, if she was not scheduled for clinic duties, there was no adverse affect on staff or the clinic. Petitioner thought the investigatory interview for her failure to be at work during scheduled hours “was a bit harsh,” and felt that FDOH-Volusia was “monitoring her coming and going.” She testified that the monitoring of her “daily schedule, coming and going,” was related to the September 23, 2016, meeting. Petitioner provided information on her “tardies” to Ms. Ayers. Ms. Ayers had by then been assigned as Petitioner’s supervisor since Petitioner had, in another act of “speaking up and speaking out,” filed a formal grievance against Dr. Husband for retaliation.2/ Ms. Boswell testified convincingly that Petitioner was not authorized to unilaterally “flex” her time; that an agency cannot be run when employees alter their schedules without notice; and that Petitioner’s excessive absences from her duty station violated the Employees’ Handbook. The documentation provided by Petitioner was deemed to be insufficient to justify her absences, and did not explain why Petitioner failed to get approval from a supervisor before modifying her work schedule. Thereafter, on or about June 22, 2017, Petitioner received a written reprimand for the absences. Petitioner refused to sign the written reprimand to acknowledge her receipt. The testimony of Ms. Boswell and Ms. Ayers that the written reprimand was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the written reprimand had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The June 22, 2017, written reprimand was the last of the retaliatory actions for the September 23, 2016, meeting alleged by Petitioner. Petitioner has alleged that the October 5, 2016, change in duty station; the October 18, 2016, Documented Counseling; the December 16, 2016, oral reprimand; the April 12, 2017, investigatory interview; and the June 22, 2017, written reprimand were all unwarranted retaliation for the statement she made during the September 23, 2016, meeting, i.e., that Dr. Husband had been negative towards her. Petitioner acknowledged that there was “some truth” in the discipline, but lots of “fluff.” To the contrary, the evidence is convincing that, if anything, FDOH-Volusia was, and remains, exceedingly lenient and accommodating to Petitioner with regard to the substantiated discipline meted out. As set forth previously, Petitioner has not been terminated or demoted, and has not suffered a pay decrease or a decrease in benefits. While her duty station was moved from Daytona Beach to New Smyrna Beach, those locations are approximately the same distance from Petitioner’s home, and she has since been moved back to Daytona Beach for “need” related reasons. Respondent in this case presented hours of compelling testimony from multiple credible witnesses regarding Petitioner’s poor management skills, poor interpersonal skills, poor leadership skills; her tense, argumentative, and disrespectful attitude; and more. The testimony was, presumably, offered to demonstrate that FDOH-Volusia had a legitimate, non- discriminatory basis for the alleged adverse employment actions taken against Petitioner. The testimony and evidence was unnecessary. Not once during the course of the hearing did Petitioner allege or argue that the actions taken as described herein had anything to do with discrimination or retaliation based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Petitioner stated that the actions taken against her were the result of her having “spoken up and spoken out” against negative comments from her supervisor, Dr. Husband. There was nothing raised in Petitioner’s Employment Complaint of Discrimination, in her Petition for Relief, in her statement of position in the Joint Pre-hearing Stipulation, in the testimony and evidence that she offered at the final hearing, or in her Proposed Recommended Order that even intimates that FDOH-Volusia committed an unlawful employment practice as established in section 760.10, Florida Statutes. As will be discussed herein, the failure to allege, argue, or prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the most basic jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Lisa J. Funchess’s Petition for Relief, FCHR No. 201701356. DONE AND ENTERED this 17th day of January, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 17th day of January, 2019.
Findings Of Fact The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility. The Petitioner was licensed on February 5, 1986. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey. Accompanying the team was Earl T. Wright, an employee of the Respondent. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place. It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986: A copy of the Resident Bill of Rights was not posted in the facility. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department. The facility did not have back-flow devices to prevent contamination from entering the water supply. The fire alarm system was not continuously maintained in reliable operating condition. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200). DONE and ENTERED this 21st day of July, 1987. WILLIAM C. SHERRILL, JR. 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 21st day of July 1987. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 John Brook, Esquire 695 Central Avenue Suite 213 St. Petersburg, Florida 33701
