The Issue Did the Department of Children and Family Services (Department) properly terminate Home-Delivered Meals to Petitioner under the Community Care for Disabled Adults Program?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of administering the Community Care for Disabled Adults Act (CCDA). See Sections 410.601- 410.606, Florida Statutes. In accordance with Section 410.604(1), Florida Statutes, the Department contracted with Gulf Coast Jewish Family Services, Inc. d/b/a Gulf Coast Community Care (Gulf Coast Community Care) to administer the CCDA in the following Florida Counties: Pasco, Pinellas, and Hillsborough. The services to be administered under the contract with Gulf Coast Community Care are Case Management, Personal Care, Homemaker, Emergency Alert Response, and Home-Delivered Meals. In December 1998, the Department determined that Petitioner met the eligibility requirements for services under the CCDA Program as set out in Sections 410.603(2) and 410.604(2), Florida Statutes, and Chapter 2, Client Eligibility, HRS Manual 140-8, Aging and Adult Services, Community Care For Disabled Adults. At this time, Petitioner was eligible to receive Case Management and Homemaker services. In September 1999, Petitioner became eligible for Home- Delivered Meals, which consisted of three frozen meals being delivered to Petitioner's home once a week. On November 19, 2001, Petitioner's Caseworker, Odette Powell, visited Petitioner's home for the purpose of completing a Homemaker Service Plan (Plan). The Plan listed the different Homemaker services which Petitioner was to receive. Meal Planning/Preparation/Food Storage was not included in the services listed in the Plan because Petitioner advised her caseworker that she did not need that service. On November 19, 2001, the Homemaker was spending two hours per week at Petitioner's home helping with the different Homemaker Services. Petitioner's neighbor helps Petitioner prepare meals on Tuesdays and Thursdays. Additionally, Petitioner's children, a son and a daughter, come approximately twice a month to assist Petitioner with whatever needs to be done. Petitioner also obtains food through charities and buys food with her social security income and the social security income of a second daughter who lives with Petitioner. On May 20, 2002, the caseworker completed another Plan which added the services of meal planning/preparation/food storage as needed and another hour of homemaker services, which totaled three hours per week of Homemaker services for Petitioner. Petitioner is capable of preparing her own food. Particularly with the help of her neighbor, relatives, and Homemaker services. Petitioner has sufficient income with which she could purchase Home-Delivered Meals if she so desired. Therefore, Petitioner is no longer in need of the Home-Delivered Meal service.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order terminating Home-Delivered Meals to Petitioner under the CCDA Program. DONE AND ENTERED this 12th day of July, 2002, 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 (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 12th day of July, 2002. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services 9393 North Florida Avenue, Room 902 Tampa, Florida 33612 Delores Morris Post Office Box 2373 Dade City, Florida 33525 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent employer is guilty of an unlawful employment practice, by failure to hire Petitioner on the basis of her color and/or national origin.
Findings Of Fact Respondent Advent Christian Village (Village) is an "employer" as defined in Section 760.02(7), Florida Statutes. The Village is a comprehensive retirement community, which offers a range of living options from independent living to long-term care for senior citizens who can afford them. It accommodates 750 residents and 450 employees. Petitioner's Charge of Discrimination and Petition for Relief were based upon "color" and "national origin". Apparently, Petitioner and her qualified representative erroneously understand "color" and "race" to be synonymous. However, neither Petitioner nor anyone else testified as to her race. Petitioner is a very dark- or black-complexioned female. Petitioner testified that she was born abroad, but no national origin was specified by stipulation or by evidence. She speaks with an accent, which was not explained on the record as to national origin. The Charge of Discrimination names her country of origin as Sri Lanka. In August 2002, Petitioner was living in New York. She received a copy of Respondent's notice for a job opening as Director of Food Service, and she applied. Respondent notified Petitioner to prepare for a telephone interview at 9:30 a.m., on August 12, 2002. When the phone call came at 9:47 a.m., Gerald Buchert, vice president of Respondent's Programs and Services Division, asked Petitioner if she had received a videotape he had sent her about the Village. Petitioner had not received the videotape, but she decided to go ahead with the telephone interview, anyway. Petitioner and Mr. Buchert engaged in a 45-minute phone discussion of Petitioner's qualifications. Mr. Buchert was aware from Petitioner's accent that she may have been born abroad. Nonetheless, Mr. Buchert considered Petitioner, due to her experience, credentials, and work ethic, to be a viable candidate for the position of Director of Food Service. It is disputed whether Mr. Buchert urged Petitioner to come to the Florida facility for an in-person interview or whether she volunteered to do so. Respondent did not volunteer to pay Petitioner's way, but before Petitioner and Mr. Buchert hung-up their phones on August 12, 2002, they mutually had agreed to an in-person interview at the Village on September 11, 2002. Mr. Buchert made sure before hanging up the phone that this was a date that Respondent's full interview team would be available. Mr. Buchert also intended to introduce Petitioner, on the date of her in-person interview, to Mr. Jim Humbles, Respondent's President and CEO. Petitioner formed the belief that Mr. Humbles would be part of the interview team. As President and CEO, Mr. Humbles traditionally is only involved in interviews for cabinet-level positions within the Village's management hierarchy. Positions such as vice president are cabinet-level positions. The Director of Food Service position is not a cabinet-level position. It is a position within the Programs and Services Division, which is headed by vice president Buchert. Mr. Buchert was in charge of interviewing and hiring a Director of Food Service. After the telephone interview on August 12, 2002, but on the same day, Petitioner received the video that Mr. Buchert had sent. There is no record evidence of what was contained in this video, and therefore no record evidence of how it represented "people of color" or anyone's national origin, or if it did. Petitioner never viewed it. Through Mr. Humbles' assistant, Mr. Buchert scheduled Mr. Humbles' attendance at lunch on September 11, 2002, in the Village's cafeteria with himself and Petitioner. His assistant placed the lunch appointment on Mr. Humbles' calendar. At some point after the lunch appointment had been placed on Mr. Humbles' calendar, he was invited to take part in the memorial service to be held in the Village chapel on September 11, 2002, to memorialize the victims of 9/11/01's acts of terrorism. Feeling that he would be too rushed to attend both events, Mr. Humbles cancelled the lunch appointment. At the latest, this cancellation was accomplished between Mr. Humbles' assistant and Mr. Buchert's assistant on the day before September 11, 2002. Diane Johnson, Director of Housekeeping Services; Anita Hayes, vice president for the Village's Conference and Retreat Center; and Mr. Buchert, comprised the interview team for the Director of Food Service position. Immediately upon Petitioner's arrival at the Village on September 11, 2002, Petitioner met with the interview team in Mr. Buchert's office. Petitioner was invited to attend the memorial service for victims of 9/11/01's terrorism in the chapel with Mr. Buchert, which she did. After attending the memorial service, as they walked across the parking lot, Mr. Buchert hailed Mr. Humbles, and introduced Petitioner to him. Mr. Humbles, who had just participated in the memorial service, was emotionally overcome. Mr. Buchert noticed nothing unusual, but Mr.Humbles admitted to possibly being uncharacteristically aloof or withdrawn in his response to Petitioner as a result of his emotions over the chapel service. The introduction of Mr. Humbles and Petitioner and their brief conversation lasted only 20 to 30 seconds. Due to the abruptness of her meeting with Mr. Humbles, Petitioner interpreted Mr. Humbles' failure to inquire about her trip from New York and to engage in other pleasantries as a snub of her, personally, and thus, discrimination. Petitioner then went to lunch with Mr. Buchert and the other interview team members in the Village cafeteria. She testified that she saw Mr. Humbles eating in the cafeteria while she was there, and that she considered his non-attendance at the team's table to be a rejection of her candidacy for employment based on race, color, or national origin. Mr. Humbles testified equally credibly that he did not remember being in the cafeteria that day, he only remembered he had previously cancelled his lunch attendance due only to his crowded calendar. Petitioner testified, without refutation, that during lunch, Mr. Buchert said, ". . . in the Village is [sic.] still people who discriminated [sic.] colored people," and Petitioner changed the subject, saying, "What has [sic.] to do with the color if you have experience?" (TR 39) It is inferred that Petitioner considered Mr. Buchert's statement to be an offensive or discriminatory one. After lunch, Petitioner was interviewed for two to three hours, by Mr. Buchert, Diane Johnson, and Anita Hayes. Mr. Buchert is a white male. The two other interviewers are white females. There was no evidence presented of their country of origin, but it is inferred that all three interviewers are native-born Americans. Ms. Johnson was on the interview committee because of her long history as a Village employee. Ms. Hayes was on the interview committee because there was going to be consideration of expanding food service into the Conference and Retreat Center, which she managed. Petitioner and all the interviewers agreed that Petitioner's interview was cordial. After her interview, each of the three interviewers was satisfied that Petitioner met their threshold requirements for the job opening of Food Service Director, which included a minimum of ten years' food service experience and the ability to handle a 250-seat cafeteria and a 42-person assisted living facility. Petitioner was one of only three applicants who were interviewed in-person for the position of Food Service Director. Mr. Clifford Burr, a white American male, was ultimately selected. The record is silent as to the race, color, national origin, and qualifications of the third applicant. Petitioner's interview was the third one. Petitioner's interview process was the same as the interview process for the other two applicants. The interviewers reviewed each applicant's resume before the respective interview. All three interviewers were present for the in-person interview of each applicant. After each applicant's interview, the respective applicant was considered by the interviewers to have met the threshold job requirements. Interviewers Johnson and Hayes did not make the decision as to which applicant should be hired, although they had input. The ultimate decision to hire Mr. Burr was made by Mr. Buchert. Mr. Humbles was not involved in the interview or selection process for the Director of Food Service, and he did not take part in any of the three in-person interviews. He also did not direct whom Mr. Buchert should hire. It was never intended by Respondent that Mr. Humbles should have any input into the hiring process for Food Service Director. (See Finding of Fact 7.) Mr. Humbles, in fact, had no input into the decision to hire Mr. Burr. Having observed the candor and demeanor of Mr. Burr while he testified that he did not meet Mr. Humbles until after he had been hired, that testimony is found to be credible, contrary to Petitioner's proposal that it is not credible. However, this is an insignificant and irrelevant point, inasmuch as Petitioner had met Mr. Humbles prior to her interview. After interviewing Petitioner, who was the last applicant to be interviewed, Ms. Hayes believed both other applicants were more qualified for the position than Petitioner. She was particularly impressed by Mr. Burr's long-term care experience, which went beyond merely managing a dining area. Mr. Burr had over 10 years' experience in health care facilities. His experience included serving as a consultant for a corporation with numerous health care facilities, including long-term care facilities, and a total of more than 20 years in the food service industry. As a result of his experience in health care facilities, Mr. Burr had extensive knowledge regarding the dietary needs of the elderly. Petitioner's post-hearing proposal asks why Mr. Burr's resume ends in December 2001, but Mr. Burr's testimony that he sold out his family restaurant/bakery business in a northern state for the purpose of semi-retirement in Florida is sufficient explanation of this part of his resume. Petitioner's proposal also states that Mr. Burr had no college degrees, yet Mr. Burr's resume shows: "University of Florida 1976, Major: Food Service Management, Dietetic Assistant Program," and "Purdue University, 1978, Major: Achieving Food Service Excellence," and Mr. Buchert determined during Mr. Burr's interview that Mr. Burr was a Certified Dietary Manager. Petitioner's resume makes no reference to any college degrees or credits. It does not list any certifications. Petitioner's resume reveals that she had excellent experience in restaurant management and food service management, including food service management in a college environment, but it shows no experience in a long-term care facility for frail or elderly persons. Petitioner had only 13 years' experience in all types of food service. Mr. Buchert's hiring decision was made primarily upon Mr. Burr's 20 years in the food service industry; his 10 or more years of food service in health care facilities, such as assisted living facilities, extended care facilities, and nursing homes; his consultant services to similar facilities; and the creative aspects of his former ownership and management of a family-owned café/restaurant and bake shop. Mr. Buchert wanted to expand Respondent's food service function, and he thought Mr. Burr was better qualified for this creative task than Petitioner or the other applicant. The three interviewers testified credibly that neither Petitioner's national origin, color, and/or race was of any concern to them. Interviewers Johnson and Hayes testified credibly that those elements did not enter into their recommendations to Mr. Buchert, and Mr. Buchert testified credibly that none of those elements had anything to do with his ultimate decision not to hire Petitioner. Mr. Buchert further articulated reasons for selecting Mr. Burr which are both legitimate and non-discriminatory. Respondent never provided Petitioner with Exhibits P-1 and P-2, glossy promotional materials designed to encourage senior citizens to buy into/move into Respondent's facility. Exhibit P-1, is a large brochure with a separate pricing guide. Exhibit P-2 is a virtually identical smaller pamphlet. Petitioner testified that if she had seen P-1, she would never have come to Florida for an interview with Respondent because that brochure did not show enough "people of color." Petitioner's testimony characterized Exhibit P-1 as showing only three "people of color" out of all the people pictured on its front cover, and showing no "people of color" inside. She further characterized the front cover picture of Exhibit P-1 as showing three persons with "dark or black" skin and "one from Japan or Korea." On what basis she made these assumptions, she did not say. In his testimony, Mr. Humbles guessed that there were "two to three Blacks, one Hispanic, and at least one or two Indians" on the front cover of Exhibit P-1. He, also, did not say how he reached these assumptions. Neither of these witnesses demonstrated any expertise in discerning national origin from facial features or any expertise in racial identification. Other witnesses were not asked to guess at color, race, or national origin as pictured on or in the brochure or the pamphlet. In an independent review, the undersigned counted six persons of darker skin hue than the most predominant light skin hue of a total of 26 people on the front and back covers, combined. At most, there is only one adult with a darker skin hue pictured on the inside pages, but there is nothing on or in either exhibit that would signal whether the people photographed inside or outside the covers perceive themselves as "people of color," nor is there anything in the exhibits that designates "country of origin" for anyone pictured. There also is nothing that distinguishes employees from residents on any cover. Inside, age alone might be an indicator of resident status. No expert statistician was presented to show whether or not the number of people pictured constituted a reasonable sample of a resident population of 750 and/or an employee population of 450. It is unrefuted that the brochure (P-1), and presumably the pamphlet (P-2), was designed by a management firm upon instructions from Mr. Humbles to "represent the community in which we live." Both P-1 and P-2 were designed to attract residents, not employees, to the Village. There is every possibility all the people pictured are professional models.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 18th day of July, 2003, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 18th day of July 2003. COPIES FURNISHED: D. Paul Sondel Qualified Representative 2135 Victory Garden Lane Tallahassee, Florida 32311 Patrick D. Coleman, Esquire Amy H. Reisinger, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Nimali Sondel 439 Granite Road, No. 5 Kerhonkson, New York 12446
Findings Of Fact By contract, the Department of Health and Rehabilitative Services, through the facilities of the county health units, conducts inspections of public food service establishments in Florida on behalf of Petitioner. On December 17, 1981, Arthur Maze, a sanitarian with the Monroe County Health Department, and Howard Farris, a sanitarian supervisor for the Monroe County Health Department, appeared at the Key Largo Restaurant to conduct a regular inspection and to ascertain if violations noted on previous inspections had been corrected. They arrived at the restaurant at approximately 5:00 P.M. while the restaurant was open for business. Upon entering the premises and requesting entry into the kitchen area for inspection, the inspectors were refused admission to the kitchen by the hostess, Mrs. Newell. On January 14, 1982, Petitioner issued its Notice to Show Cause to its licensee Mt. Key, Inc., trading as Key Largo Restaurant. The Notice to Show Cause was sent by certified mail. The Notice included information regarding informal conference procedures and formal hearing procedures. Douglas Newell attended an informal conference with the Petitioner on behalf of Mt. Key, Inc. On January 26, 1982, he demanded a formal hearing on the allegations contained in the Notice to Show Cause. He executed the Demand for Formal Hearing as the president of the licensee. Based upon Newell's Demand for Formal Hearing, Petitioner referred the matter to the Division of Administrative Hearings. By Notice of Hearing dated April 28, 1982, this cause was scheduled for formal hearing, and the Notice was forwarded, as had been all pleadings and orders, to Douglas Newell, President of Mt. Key, Inc., in care of Key Largo Restaurant. Douglas Newell is not the president of Mt. Key, Inc., nor is he an officer, director, or stockholder in that corporation. Douglas Newell is the president of Largo Queen, Inc. Largo Queen, Inc., is the operator of Key Largo Restaurant pursuant to the terms of a lease management agreement with Mt. Key, Inc. Newell admitted at the formal hearing that he was not authorized to represent Mt. Key, Inc., in this proceeding, and no one appeared, or requested to appear, on behalf of Mt. Key, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding licensee Mt. Key, Inc., doing business as Key Largo Restaurant, guilty of violating Section 509.032(2)(a), Florida Statutes (1981), and imposing against Mt. Key, Inc., a civil penalty of $500. RECOMMENDED this 16th day of August, 1982, in Tallahassee, Florida. LINDA M. RIGOT, 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 16th day of August, 1982. COPIES FURNISHED: William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Douglas Newell c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mt. Key, Inc. c/o Key Largo Restaurant Overseas Highway Post Office Box 494 Key Largo, Florida 33037 Mr. Gary Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact The Hearing Officer entered his Recommended Order on February 28, 1980. A copy of the Recommended Order of the Hearing Officer, including his Findings of Fact, is fully set forth in the appendix of this Order. On March 19, 1980, the Executive Director, Intervenor herein, filed his exceptions to the Hearing Officer's Recommended Order. Petitioner subsequently joined in and adopted the Intervenor's exceptions. On April 11, 1980, Respondent Leon County School Board filed its response to Intervenor's exceptions. Briefs and supporting legal memoranda were also filed by the parties. On April 21, 1980, the oral argument was held on the exceptions to the Hearing Officer's Recommended Order and the response thereto. Having reviewed the transcript of the proceedings, and having considered the exceptions, briefs and oral arguments of the parties, we find that the Hearing Officer's Findings of Fact are supported by competent, substantial evidence of record and are hereby adopted by this Commission as its Findings of Fact and are incorporated herein. II CONCLUSIONS OF LAW Unlawful Employment Practice. Section 23.167, Florida Statutes, provides in pertinent part, as follows: 23.167 Unlawful employment practices: remedies; construction. -- (1) It is an unlawful employment practice for an employer: (a) To . . . fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment, because of such individual's race, color, . . . . * * * (13) In the event that the commission, in the case of a complaint under subsection (10) . . . finds that an unlawful employment practice has occurred, it shall issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees. Since the Florida statute is patterned after the federal law on the same subject (Title VII of the Civil Rights Act of 1964), then the Florida statute should be given "the same construction in the Florida Courts as its prototype has been given in the federal Courts insofar as such construction is harmonious with the spirit and policy of Florida legislation on the same subject." Pasco County School Board v. Florida Public Employees Relations Commission, 353 So. 2d 108, 116 (Fla. 1st DCA 1977). The standard of proof applicable in cases of individual actions involving disparate treatment is as delineated by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792(1973). Under McDonnell Douglas and subsequent cases, the Petitioner bears the initial burden of establishing a prima facie case of racial discrimination by showing: (1) that she belongs to a protected class (racial minority); (2) that she applied and was qualified for a job for which the employer was seeking applicants; (3) that despite her qualifications, she was not hired (promoted); and (4) the employer hired/promoted a Caucasian for the job prior to the published closing date for the position. It is clear, from McDonnell Douglas, that Petitioner "carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a discriminatory criterion illegal under the Act." Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1977). To dispel the adverse inference from the petitioner's prima facie case, the burden then shifts to the employer. The employer then must articulate some legitimate, non-discriminatory reason for not hiring or promoting the petitioner. McDonnell Douglas v. Green, Supra, at 802. Finally, the petitioner is required to rebut the employer's stated reason for failure to hire or promote by showing that the employer's alleged non- discriminatory motive is in fact a pretext. Furnco Construction Corp. v. Waters, Supra, at 578. In order for the Petitioner to prevail in this case, she must convince the Commission by a preponderance of the evidence that Respondent's failure to hire/promote her to the Food Service Worker- 5 1/2 hour position was based on the fact that she is black, rather than any legitimate non-discriminatory reason. There is substantial competence evidence in the record to support the Commission's conclusion that Ms. Hargis established a prima facie case. Petitioner is the only black food service worker employed at Fairview Middle School. Petitioner was qualified for the position she sought and had more seniority than the white female chosen for the position. She was the only person who sought to make formal application for the vacancy listing which appeared in the Leon County School's September 5, 1978, Job Opportunities Bulletin. When she attempted to make formal application for the position, she was informed that the position had already been filled. Petitioner's formal application was effectively frustrated and would have been futile at that point. Despite her superior past record of performance as a food service worker, Petitioner was neither advised of the vacancy nor permitted to apply, so that Respondent might promote/hire Mrs. Minnie Barfield, a white female, for the position. Therefore, Petitioner's establishment of a prima facie case raises an inference that Respondent's failure to hire/promote her was racially premised. The Respondent seeks to rebute Petitioner's prima facie case by articulating as its legitimate, non-discriminatory reason for not hiring/promoting Mrs. Hargis, to a lack of coordination and communication in advertising the vacancy, between the Central Kitchen and the Dining Hall manager at Fairview Middle School, who was also responsible for making the final employment decision. Respondent also places great reliance on an informal October, 1977, meeting in which Petitioner indicated that she was unable to assume the additional hours of the 5 1/2 hour position, for various personal reasons at that time. It is undisputed that Respondent failed to comply with its existing collective bargaining agreement in filling the vacancy that Petitioner sought. The contract requires that existing employees be considered for a vacancy before a decision on employment is reached. Upon being informed that the advertised position vacancy had already been filled, Mrs. Hargis complained to the Fairview Middle School principal on or about September 11, 1978, prior to the announced closing date for the position. The principal took no positive actions to correct an obvious error, but instead informed Petitioner that if she was not satisfied with the situation, she could check with Mrs. Linton, the Director of School Food Service. Mrs. Linton is the same management official who had already filled the Food Service Worker position by hiring/promoting the white employee with less seniority than Petitioner. In light of these substantial procedural irregularities in the filling of this position, Respondent asserts that although its procedures and collective bargaining agreement may not have been properly complied with in this case, its actions were not motivated by discriminatory intent. There is no direct evidence of discriminatory intent in the instant case, and such evidence is seldom present. Therefore, circumstantial evidence, or inferences, may be relied upon to establish discriminatory motive. Page v. Bolger, 21 EPD paragraph 30,500 (4th Cir. 12/19/79), citing the U.S. Court decisions in International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335, n. 15 (1976), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973). The ultimate inquiry, in examination of the issue of discriminatory intent, is whether the decision or action in question was racially premised, i.e., was it a cover-up for a racially discriminatory purpose. B. Schlei and P. Grossman, Employment Discrimination Law, 1153-1154 (1976). An examination of the totality of the circumstances in this case leads this Commission to the conclusion that the Respondent's stated reasons of error and negligence in its failure to promote/hire the Petitioner for the Food Service Worker-5 1/2 hour position are merely a pretext for racial discrimination against Mrs. Hargis. It is beyond question that Petitioner was thoroughly qualified for the position sought. The procedures utilized by Respondent to fill this position afford too much opportunity for subjective evaluation by a single supervisor with no clear standards for making crucial employment decisions. Mrs. Linton entirely controlled the promotion/hiring process in this case. The vacancy was filled prior to the proper posting of notices and without complying with Respondent's collective bargaining agreement. Such procedures must be subjected to close scrutiny by this Commission. Respondent had ample opportunity to remedy its actions, but failed to take any corrective measures. Instead, Respondent simply suggested that Petitioner contact the very individual who had committed the unlawful employment practice in the first instance. It can only be concluded that Respondent knew of the racially discriminatory impacts of its decision and that Respondent sought to cover-up its unlawful activity by posting of vacancy announcements after the employment decision had been made. As the United States Supreme Court noted in Local 189, Papermakers & Paperworkers v. United States, 416 F.2d 980, 997 (5th Cir. 1969), cert. denied 397 U.S. 919 (1970), "the conduct engaged in (here) had racially-determined effects. The requisite intent may be inferred from the fact that the (respondents) persisted in the conduct after its racial implications had become known." Section 23.167 requires no more. In summary then, the Commission finds that the Respondent unlawfully discriminated against the Petitioner on account of her race by failing to hire/promote her to the position of Food Service Worker-5 1/2 hours, and instead promoted a white person, in violation of Section 23.167(1), Florida Statutes. Admissibility of Executive Director's Determination. On page 2 of his Recommended Order, the Hearing Officer notes that: "At the hearing, the Intervenor sought to introduce in evidence the Executive Director's Determination: Cause, issued August 31, 1979, under the public records exception to the hearsay rule, pursuant to Section 90.803(8), Florida Statutes. After having considered post-hearing submissions filed by the parties, the Hearing Officer ruled that the Executive Director's Determination was: received in evidence as a public record exception to the hearsay rule solely for the purpose of establishing the fact that the (Executive Director) complied with pertinent rules of the Commission in processing this case, but not for the truth of the matters contained in the summary of the investigation or the validity of the (Executive Director's) findings therein. We reject this conclusion of the Hearing Officer. It is well settled in Florida that the contents of public records may be introduced as an exception to the hearsay rule. Smith v. Mott, 100 So. 2d 173 (Fla. 1959); Wilkerson v. Grover 181 So. 2d 591 (Fla. 3d DCA 1965). All that Florida law requires is that the reporting be made pursuant to law, Bell v. Kendrick, 25 Fla. 778 6 So. 868 (1889), and that the document be credible and trustworthy. Smith v. Mott, supra. As the court in Mott held, "the secondary character of the evidence . . . only affects the weight to be accorded it and not its competency." We also conclude that the Determination is admissible "for the purpose of supplementing or explaining other evidence even though it may not be sufficient in itself it support a finding." Section 120.58(1)(a), Florida Statutes; Pasco County School Board v. PERC, supra. This Commission concludes, as did the Fifth Circuit Court of Appeals in Smith v. Universal Services, Inc., 454 F 2d 154, 4 FEP Cases 187 (5th Cir. 1972), that the Determination is admissible as it tends to ease the agency's fact-finding burden. However, the fact-finder is not bound by the findings in the Determination and it is to be given no more weight than any other evidence or testimony received at the hearing. No due process violation occurs as a result of the admission of the Determination. Georator Corp. v. EEOC, 592 F.2d 765 (4th Cir. 1979); Pantechenko v. C.B. Dolge Co., 18 FEP Cases 686 (D.C. Conn. 1977). The Executive Director's Determination, consisting of a summary of the allegations of discrimination, a brief summary of the facts developed in the investigation, and the Executive Director's finding of reasonable cause to believe that a violation of the Human Rights Act has occurred, is analogous to other reports admissible under Section 90.803(8) and (6), Florida Statutes. See Smith v. Mott, supra; Wilkerson v. Grover, supra, (admitting hospital records). The report was prepared in the regular course of the Executive Director's duties and in accordance with Section 23.166(5), Florida Statutes, and Rule 9D- 9.04(2), Florida Administrative Code. In view of the general presumption under Florida law that public officials perform their duties in accordance with law, and the absence of any evidence to the contrary, the Determination of the Executive Director is admissible in evidence. Hillsborough County Aviation Authority v. Taller and Cooper, 245 So. 2d 100 (Fla. 2d DCA 1971). In reaching this conclusion, we have not considered and do not have decide whether the Investigatory Report, upon which the Determination is based, is admissible. See Gillin v. Federal Paper Board Co., 52 FRD 838, 2 FEP Cases 507 (D.C. Conn. 1979), aff'd 479 F.2d 97, 5 FEP Cases 1094 (2d Cir. 1973), where the EEOC Determination was admitted in evidence while the rest of the investigatory materials were excluded. In their exceptions to the Recommended Order, Intervenor and Petitioner assert that the Hearing Officer's Conclusions of Law re in error and should not be adopted by the Commission. To the contrary, Respondent asserts that the Hearing Officer's Conclusions are correct and should be upheld. Having fully considered the exceptions and briefs of the parties, as well as the Conclusions of Law reached by the Hearing Officer, in view of the foregoing Conclusions reached by the Commission, those portions of said exceptions and Recommended Order not incorporated in this Order are deemed to be unnecessary, irrelevant or unwarranted in law or fact, and are rejected. Having considered all of the foregoing, it is therefore ORDERED AND ADJUDGED: Petitioner shall be promoted by Respondent to the Food Service Worker-5 1/2 hour position at Fairview Middle School, or to an equivalent position within the Leon County School System that is within a reasonable convenient commuting distance for Petitioner; such promotion to be retroactive to September 12, 1978, and to take place no later than August 1, 1980. Petitioner shall receive from Respondent back pay equivalent to the salary she would have been paid in the position for the period which she has been illegally denied employment; such back pay to be reduced by the amount of income Petitioner received from her interim employment with the Leon County School Board. Petitioner is awarded attorney's fees. Petitioner has seven working days from the date of this Order to submit affidavits on attorney's fees to Respondent. Respondent has seven working days in which to respond. Following such response the parties have seven working days in which to negotiate a settlement of the amount to be awarded. If, at the end of the seven-day negotiation period, the parties have been unable to reach settlement amount, Petitioner shall immediately file a notice of failure of settlement with the Clerk of the Commission requesting that an evidentiary hearing be set on the award of attorney's fees. It is so Ordered: Dated this 29th day of May, 1980. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS Reese Marshall, Commission Chair Florida Commission on Human Relations FILED this 29th day of May, 1980, at Tallahassee, Florida. BY: Sondra J. Anderson Acting Clerk of the Commission
Recommendation That the complaint and petition herein be dismissed by the Florida Commission on Human Relations. DONE AND ENTERED this 28th day of February 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ralph Armstead, Esquire Legal Service of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida Reese Marshall, Chairperson Florida Commision on Human Relations 2562 Executive Center Circle, E. Tallahassee, Florida 32301 Charles A. Johnson, Esquire Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Aurelio Durana, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, E. Tallahassee, Florida 32301
Findings Of Fact On August 10, 1977, Petitioner filed an application for an Adult Congregate Living Facility License. Thereafter, on nine separate occasions Petitioner was visited by representatives of Respondent, the Dade County Fire Department, and the Dade County Health Department. The results of the inspections by these governmental agencies were numerous lists showing deficiencies in Petitioner's staff, physical plant, sanitary practices, and in diets being furnished to the residents of the facility. At the final hearing in this cause, Petitioner's President admitted that the deficiencies noted in the May 22, 1978 letter of Respondent's Supervisor of the Aging and Adult Services Program, which was marked as Petitioner's Exhibit Number 3, were correct as of the date of the letter. Petitioner contends, however, that the deficiencies noted in Petitioner's Exhibit Number 3 have since been corrected. However, the issue in this proceeding is whether there was substantial competent evidence in existence on May 22, 1978, to justify the denial by HRS of Petitioner's application for an Adult Congregate Living Facility License. Corrections made by Petitioner after that date are irrelevant to this proceeding, although Petitioner would not, of course, be estopped to show correction of these deficiencies in a later application. Inspections conducted by or on behalf of HRS on April 7, 1978, May 12, 1978, and May 16, 1978, showed that staff on duty at Petitioner's facility was inadequate to properly supervise residents in the facility. On the April 7, 1978, visit, there were only one or two staff members on duty to care for thirty-four residents of the facility. The inspection conducted on May 16, 1978, revealed only one staff member on duty. The Administrator of the facility on both occasions was not in attendance at the facility at the time of the inspections. Fire inspections on Petitioner's facility were conducted on January 6, 1978, and again on April 20, 1978. The January 6, 1978, inspection resulted in a lengthy list of deficiencies, which included citations for no building evacuation plan, improper fire extinguishers, lack of proper latching devices on doors, improper hanging of doors, improper installation and maintenance of electrical equipment, no emergency lighting, obstruction in facility corridors, lack of exit signs, lack of smoke detectors, insufficient landing size on stairways, improper storage of flammable chemicals, and improper safety precautions in the electrical equipment room. The April 20, 1978, inspection also resulted in a lengthy list of deficiencies, including lack of an evacuation plan, no record of evacuation drills having been held, lack of proper latching devices on stairway fire doors, and lack of exit signs. There is no evidence of record from which to conclude that these deficiencies were corrected prior to the date on which HRS denied Petitioner's application for a license to operate an Adult Congregate Living Facility. Sanitary inspections of Petitioner's facility were conducted on August 29, 1977, and April 18, 1978. The August 29, 1977 inspection resulted in a lengthy list of deficiencies which is contained in Petitioner's Exhibit Number Among these deficiencies were improper doors, windows and screens in the facility, lack of handrails, improper lighting, improper heating, insufficient number of toilets for the existing number of residents in the facility, and numerous electrical code violations. The inspection conducted on April 18, 1978, revealed many of the same deficiencies noted in the earlier inspection. In addition, a serious fly problem was observed in the kitchen area which was caused by improper sanitary procedures in the kitchen and disrepair of windows, screens and doors. In addition, live roaches and roach eggs were observed in the kitchen, also due to improper sanitary procedures. Further, a live rat and significant quantities of rat droppings were also observed in the kitchen area. The April 18, 1978 inspection also revealed cracked ceilings, holes in walls, malfunctioning lights, holes in floors, and use of a common drinking cup at the water fountain in the facility. There is insufficient evidence in the record in this cause to appropriately demonstrate that the deficiencies noted in the August 29, 1977 and April 18, 1978 inspections were adequately corrected prior to the denial of Petitioner's request for a license on May 22, 1978. On May 12, 1978, the kitchen facilities belonging to Petitioner were inspected by an HRS staff nutritionist. On the day of the inspection, the Administrator was not in attendance at the facility, and the only staff member present was a young woman who had difficulty communicating in English, and who was in charge of both residents of the facility and total food service, including preparation, serving and cleaning. The lunch menu posted for the date of the inspection did not provide one third of established recommended dietary allowances. The menu was also calculated to be deficient in calories, protein, calcium, iron, Vitamin A, Vitamin C, Thiamine, Riboflavin and Niacin. The food on hand in the facility did not correspond to posted menus, and the meal observed together with the food inventory were not sufficient for the age group residing in the facility and could result in malnutrition. The kitchen area was dirty, and food preparation utensils required scrubbing and sanitizing. Dishes were being washed with tepid water which was not sufficient for sterilization, and other sterilization methods being used for kitchen utensils were not sufficient to sterilize them. A serious fly problem existed in the kitchen, at least in part due to poor installation of doors. It was impossible to determine the qualifications of the Food Service Supervisor, no policy manual regarding food preparation was found in the facility, and no job description, work assignment, orientation plan, training record, health exam, or employee evaluation could be located for food service personnel. There were no written menus approved by a qualified consulting dietician, no written procedures for ordering, receiving and storing foodstuffs, and no food preparation or recipe file.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Health and Rehabilitative Services, denying Petitioner's Application for a License to Operate an Adult Congregate Living Facility. RECOMMENDED THIS 5th day of January, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Stuart E. Wilson, Esquire Franklin International Plaza 255 Alhambra Circle, Suite 100 Coral Gables, Florida 33134 Leonard Helfand, Esquire DHRS District XI Legal Counsel State Office Building 401 Northwest 2nd Avenue Miami, Florida 33128
The Issue By administrative complaint dated November 23, 1982, the Respondent, Mae Revles, was charged with operating an adult congregate living facility without a license. At the formal hearing, the Petitioner called as witnesses Barbara Wavell, Barbara Witham-Petruney, and June Bryant, all employees of the Petitioner, the Department of Health and Rehabilitative Services. The Respondent testified on her own behalf and also called as a witness Mary Burks. The Petitioner offered four exhibits into evidence. Petitioner's Exhibits 1 and 2 were admitted without restriction as to their use, and Petitioner's Exhibits 3 and 4 were admitted over objection as being hearsay solely for the purpose of supplementing or explaining other admissible evidence in the record. Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact The Respondent previously held a license to operate an Adult Congregate Living Facility in the State of Florida. The Respondent, on January 26, 1982, voluntarily surrendered her license and has not since that time been licensed to operate an Adult Congregate Living Facility. On November 3, 1982, an employee of HRS went to the boarding home operated by the Respondent at 551 Broadway, Kissimmee, Florida. On that date, Mr. Andrew Karr and Mr. Marcus Grady, both residents of the Respondent's boarding home, were found locked in their rooms. The doors were locked from the outside. On November 3, 1982, Mr. Andrew Karr was disoriented as to time and space and needed nursing home custodial care. He could not respond appropriately to others present in the boarding home and was not able to bathe himself and had to be helped in bathing. On November 3, 1982; another resident, Inez Smith, was disoriented. She was not capable of taking her prescribed medication without the help of another person. A lady who shared the room with Inez Smith gave her the medication. On November 3, 1982, there were three other residents in the boarding home. These residents were oriented, lucid, and desired to remain in the boarding home. Mr. Karr, prior to his removal in November, 1982, had been a resident of the boarding home since December, 1981. Mr. Grady had been a resident of the home for approximately five years prior to November, 1982, and Inez Smith had been a resident for three weeks prior to November, 1982.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That the Respondent be found not guilty of the violation charged and that the administrative complaint be dismissed. DONE and ENTERED this 11 day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1983. COPIES FURNISHED: Douglas E. Whitney, Esquire 400 West Robinson Street Suite 911 Orlando, Florida 32801 Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department, was the state agency responsible for the regulation of Adult Congregate Living Facilities, (ACLF), in Florida, and Respondent operated an ACLF, Palmetto Guest Home, at 820 5th Street West, Bradenton, Florida. On March 28, 1980, Ms. Alice P. Adler, and Ms. Mary C. Cook, both surveyors for the Department's Office of Licensure and Certification, did a routine survey of the Respondent's facility for compliance with the requirements of Chapter 10A-5, F.A.C., and Chapter 400, Florida Statutes. As a result of their survey they discovered several discrepancies which required correction. The eight pertinent to this hearing were: The facility did not have written accounting procedure that clearly outlined the operation of the business, including resident trust funds and other property. (Sec.400.417(1) and 400.427, Florida Statutes). Several resident contracts did not reflect the current rate being paid for care. (Section 400.402(10) and 400.424, Florida Statutes). There were no assurances that staff were free of infection or communicable diseases, (Rule 10A-5.019(5), F.A.C.). All centrally stored medications were not kept in a locked cabinet, in that medications were observed placed on top of the north wing medicine cabinet. (10A- 5.0182(3)(a), F.A.C.) Residents who were prescribed therapeutic diets by their physician were not served these diets as ordered. (10A- 5.020(1), F.A.C.). Various violations of the Food Service Code were identified. (10D-13, F.A.C.) Each resident record did not contain a report of physical examination to assure that the resident was free of communicable or infectious disease. (Sec. 400.426, Florida Statutes, and Rule 10A- 5.0181(2)(a), F.A.C.) The facility did not provide the resident or guardian with an admission package upon admission. Sec. 400.426(4)(5), Florida Statutes and Rules 10A-5.0181(1)(a)(c) and 10A-5.024(2)(c), F.A.C.). As was normal practice, on the day of the survey, prior to departure, the team went over its findings with Ms. Miller, the Executive Director of the facility and Ms. Brown, the Administrator, pointed out each discrepancy, and advised as to what was needed to bring the discrepancy into compliance. Thereafter, a copy of the written survey report, with the classification of deficiencies, was sent to the facility and on May 8, 1989, Ms. Brown acknowledged receipt of the survey report form. A follow-up survey was conducted by both Ms. Adler and Ms. Cook on June 5, 1989. At that time, several previously identified discrepancies had been corrected, but those listed above in Paragraph 2 were still not corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order herein imposing an Administrative Fine of $250.00 for each of the eight violations established for a total fine of $2,000.00. RECOMMENDED this 1st day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 this 1st day of June, 1990. COPIES FURNISHED: Edward A. Haman, Esquire DHRS Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 James D. Biggins Palmetto Guest House 820 5th Street West Palmetto, Florida 34221 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-00700 John Miller General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Retirement Life Center, Inc., is licensed to operate Inverrary Retirement Center Annex at 5640 N.W. 28th Street, Lauderhill, Florida as an adult congregate living facility in compliance with Chapter 400, Part II, Florida Statutes. On October 27, 1985, at approximately 11:46 a.m. the Broward County Emergency Services received a call in reference to a person bleeding from the mouth at Inverrary Retirement Center Annex. Two paramedics with Broward County Emergency Services responded to the call and immediately went to the Respondent's adult congregate living facility. Upon arrival, the paramedics went to the fence but were unable to enter the premises because a locked padlock was on the gate. There were no staff members from the facility waiting for the emergency unit. The paramedics yelled out and rang a bell in an attempt to get someone to unlock the gate. One female staff member went to the gate, but she did not have a key so she left to get someone else. At least two minutes were wasted while the paramedics attempted to gain entry into the facility. When the gate was finally unlocked, the paramedics found the victim prone on the floor of the cafeteria, cyanotic and in cardiopulmonary arrest. The Respondent had previously performed an administrative inspection of Inverrary Retirement Center Annex on February 22, 1985. At that time, one of the deficiencies cited included the fact that locks were on the fence gate. When the facility was re-inspected on June 11, 1985, the deficiency had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered assessing an administrative fine of $500.00 against Retirement Life Center, Inc., d/b/a Inverrary Retirement Center Annex. DONE and ORDERED this 8th day of May, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4214 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law section. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 7. Rejected as a recitation of testimony and/or contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Findings of Fact 3, 4 and 5. Adopted in Finding of Fact 7. COPIES FURNISHED: Dr. Martin Marenos Inverrary Retirement Center Annex 2057 North University Drive Sunrise, Florida 33322 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Suite 210 Miami, Florida 33014 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard 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
The Issue Whether Respondent committed the offenses described in the Administrative Complaint issued by Petitioner? If so, what penalty should be imposed?
Findings Of Fact Elenor's Retirement Home (Home) is a licensed adult congregate living facility located in Miami, Florida. Eric Peavy is the owner of the Home. His wife is the Home's administrator. In November, 1989, OLC personnel visited the Home to conduct a survey to determine compliance with licensure requirements. Resident contracts on file were reviewed. Three of the contracts reviewed contained neither a refund policy of the type specified in Chapter 10A- 5, Florida Administrative Code, a bed hold policy, nor a statement as to whether the Home is affiliated with any religious organization. A previous survey conducted by OLC personnel had revealed that resident contracts on file at the Home lacked these provisions. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, an examination was also conducted of the medication records maintained at the facility. The records were incomplete. They did not contain daily, up-to-date information regarding the administration of medication to three of the Home's residents. A previous survey conducted by OLC personnel had revealed that the Home did not have complete, up-to-date records concerning the daily administration of medication to all of its residents. The Peavys were so notified and directed to take corrective action. They failed to do so within the mandated time frame. This deficiency still existed as of the November, 1989, survey. During the November, 1989, survey, OLC personnel observed a resident who required greater care than the Home was able to provide. The resident was incapable of doing virtually anything for herself. Among other things, she needed to be administered medication. The Home, however, did not have the licensed staff to provide this service. The resident was totally incontinent. Because of her physical condition, the resident was unable to participate in any of the social activities at the Home. The same resident had been observed at the facility during an earlier survey conducted in June of that year. Although the matter of the inappropriateness of the resident's continued placement at the Home had been raised during the survey, the resident was still at the facility when OLC personnel returned to the Home in November. During the November, 1989, survey, the Home's fire drill records were inspected. There was no record of any fire drills being conducted at the facility in September or October of that year. This was not the first time that OLC personnel had found a lack of documentation concerning the conducting of monthly fire drills at the Home. Such a deficiency had been uncovered during an October, 1988, survey of the Home. The Peavys were made aware of this deficiency at that time. The Peavys were given written notice of the deficiencies found during the November, 1989, survey. OLC personnel revisited the Home in February, 1990, and discovered that all of the deficiencies found during the November, 1989, survey had been corrected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that Petitioner enter a final order finding Respondent guilty of the violations alleged in the Administrative Complaint, imposing a civil penalty in the amount of $1,000 for these violations and giving the Home a reasonable amount of time within which to pay this penalty. RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of May, 1991. STUART M. LERNER 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 6th day of May, 1991.
