The Issue Whether respondent should be administratively fined $500.00 for allegedly operating an Adult Congregate Living Facility without obtaining a license in violation of Section 400.407(1) Florida Statutes (1981).
Findings Of Fact Respondent, Edith Bartholomew is licensed to operate a boarding house in her home located at 201 Gould Road, Dade City, Florida. (Testimony of Cruz, R-1.) On March 24, 1982, Dr. Frederick Timmerman, Chairman of the Long Term Care Ombudsman Committee, and Diane Cruz, Adult Congregate Living Facility Licensure Specialist, inspected respondent's boarding home. Six residents, unrelated to respondent, were receiving meals, care, and lodging at respondent's home. Five residents were present during the inspection. Dr. Timmerman talked with each patient for the purpose of determining their physical and mental condition and the kind and level of physical services provided them. Only one of the five residents was capable of caring for herself during an emergency, the other four were incapable of taking care of themselves during an emergency and required physical services beyond room and board. (Testimony of Timmerman, Cruz.) Respondent explained that she kept the residents' medication locked in a kitchen cabinet. At mealtime, she would retrieve their medications from the cabinet and distribute them to the residents making sure they took the correct amount. (Testimony of Timmerman.) Respondent also admitted that she assisted her residents in bathing. The residents confirmed to Dr. Timmerman that she helped them bathe. There is conflicting evidence on whether the residents are capable of caring for themselves during emergencies, whether respondent dispenses medications to them, and whether she helps them to bathe. The testimony of Dr. Timmerman is considered the most credible and worthy of belief. He is a professional physician with no discernable bias or interest in the outcome of this proceeding. Dr. Timmerman told respondent to apply for an Adult Congregate Living Facility License, a request that had previously been made by other Department personnel. Respondent declined, responding that it involved too much paperwork. (Testimony of Timmerman.) Respondent has consistently operated a home which furnishes excellent care and services to its residents. For a reasonable fee, she provides food, lodging, personal services, and loving care to the elderly people who reside there. Department officials are convinced that she provides a valuable and essential service; they have even recommended that older persons be placed in her facility. She has always been courteous and cooperative with Department personnel. (Testimony of Cruz, Timmerman.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500.00. DONE and RECOMMENDED this 10th day of November, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 10th day of November, 1982.
The Issue The issue for consideration in this matter is whether Respondent’s Extended Congregate Care (ECC) license for the facility at 302 11th Avenue, Northeast, in St. Petersburg, Florida, should be renewed, and whether her license to operate that assisted living facility should be disciplined because of the matters alleged in the denial letter dated April 16, 1998, and in the Administrative Complaint filed herein on December 15, 1998. Ms. Berthelot requested formal hearing on those issues, and this hearing ensued.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration (Agency) was the state agency in Florida responsible for the licensing and regulation of assisted living facilities in this state. Respondent Marlene C. Berthelot operated Four Palms Manor, a licensed assisted living facility located at 302 11th Avenue, Northeast, in St. Petersburg, Florida. Ann DaSilva had been a surveyor of assisted living facilities for the Agency for at least five years at the time of the initial survey in this matter that took place in December 1997. On that occasion, Ms. DaSilva, in the company of another surveyor, Mr. Kelly, inspected the facility in issue on a routine basis. At that time, Ms. DaSilva noted that with regard to at least one resident, there was no health assessment by the resident’s physician in the resident’s file. A health assessment should contain the physician’s evaluation of the resident’s capabilities and needs, as well as his or her initial status upon admission. In this case, Ms. DaSilva found that the health care provider had not addressed the skin integrity of the resident at the time of admission as should have been done. This is important because if the resident had had a skin problem or some other health problem, the resident might well not have been eligible to reside in the facility because facilities of this kind normally do not have the capability of treating pressure sore ulcers. Ms. DaSilva also found that the health assessment did not accurately reflect the resident’s status at the time of the survey. She found the resident was far less capable of doing what the health assessment said she could do, and the assessment was neither current nor accurate. The resident required assistance in all activities of daily living, and it was reported the resident fell out of bed because she could not stand. This situation was written up as Tag A-403. Tag A-403 was re-cited in a follow-up survey conducted on March 26, 1998. At that time the surveyor found that the health assessment did not address the resident’s method of medication administration. On admission, the resident was receiving no medications at all. After she began taking medications, the facility failed to get an order from her physician to indicate how the medications were to be administered, self or with help of staff administration. Tag A- 403 was cited for a third time in the October 1998 survey where the same deficiency, as cited in the March survey, the failure of the file to reflect how the resident’s medications were to be administered, was again cited. The record still did not indicate how the resident was to receive her medications. This tag was classified as a Class III deficiency and that classification appears to be appropriate. Tag A-406, which deals with the facility’s need for an evaluation of the resident’s ability to self-preserve in case of emergency, was also cited as a deficiency in the December 30, 1997, survey. There was no evidence in the file that such an evaluation was accomplished during the first 30 days after admission regarding this resident as is required by rule. Ms. DaSilva observed the resident in bed at 9:30 a.m., and the nurses’ notes reflected she was totally dependent and needed help with locomotion. The resident suffered from cerebral palsy with severe paresis (weakness) on one side. This situation raised the surveyor’s concern as to whether the resident could get out of the facility in the event of an emergency. No indication appeared in the records or documentation regarding this resident, and no supplement was provided upon the request of the surveyor. Ms. DaSilva also heard the resident call out for assistance, a call which remained unanswered because the one staff member on duty at the time was not in the immediate area. Ms. DaSilva observed that the resident was not able to stand without assistance but the facility’s paper-work indicated the resident could self-ambulate. This was obviously incorrect. When the facility administrator, Ms. Berthelot, was called by her staff manager, she came to the facility to assist in finding the requested paperwork, but was unable to locate in the file any evaluation of the resident’s capability to self-preserve. Tag A-406 was re-cited in the March 1998 survey because again there were two residents who had been in the facility for over 30 days without any evaluation of their ability to self- preserve. It was cited for a third time during the October 1998 survey when the surveyor found two other residents who had been in the facility for over 30 days but who had not been evaluated for their ability to self-preserve, and notwithstanding a request for such documentation, none was found or produced. This resulted in Tag 406 being classified as a Class III deficiency. At the March 26, 1998, survey, Ms. DaSilva cited Tag A-504, which deals with the requirement for direct care staff to receive training in patient care within 30 days of being hired. The Agency requires documentation of such training, and surveyors look at the files of the staff members on duty to see if the employee’s file contains certification of the proper training, appropriate application information, references, and like material. This information is needed to ensure that the employee is qualified to do the job. Here, examination of the facility’s files failed to show that the one staff person on the premises during the evening shift Monday through Friday, Employee No. 1, had had the proper training. It also appeared that Employee No. 3, who was hired to work alone on Thursday and Friday evenings and Saturday and Sunday day shifts, also did not have any record of required training. This subject matter was again cited during the October 1998 survey. When Ms. DaSilva requested the file of the individual on duty, there was nothing contained therein to reflect the individual had had the required training. This was properly classified as a Class III deficiency. Tag A-505 was also cited as a result of the March 1998 survey. This tag deals with the requirement for staff who provide personal services to residents to be trained in providing those services. Ms. DaSilva asked for and was given the facility’s files but could find no evidence of proper training having been given. This subject matter was again cited as a result of the October 1998 survey. At the hearing, Respondent presented certificates of training in personal hygiene, medication policy and training, and direct care 2-hour staff training, given to all employees of all Respondent’s facilities. These certificates reflect, however, that the training was administered on April 22, 1998, after the March 1998 survey but before the October 1998 survey, though that survey report reflects the item was again tagged because of employees scheduled to work alone who did not have documentation of appropriate training. This was a Class III deficiency. As a result of the December 1997 survey, Ms. DaSilva also cited the facility under Tag A-602, which deals with medication administration, and requires staff who administer medications to be trained in appropriate methods. At the time of the survey, Ms. DaSilva observed a staff member pour medications from prescription bottles into her hand, take the medications to the resident, and give them to her. This staff member was not a licensed person and only licensed staff may administer medications. At the time, when asked by Ms. DaSilva, the staff member admitted she was not licensed and had not received any training in medication administration. Tag A-602 was again cited as a result of the March 1998 survey because at that time Ms. DaSilva observed a staff member assist a resident correctly, but when she looked at the records, she found the member had not received the required training. This has, she contends, a potential for improper medications being given which could result in possible harm to the resident. This Tag was again cited as a result of the October 1998 survey. On this occasion, Ms. DaSilva’s review of records or employees who had indicated they had assisted with medications revealed no evidence of appropriate training. Here again, the training was certified as having been given in April 1998, and Respondent contends that by the time of the October 1998 survey, the certificates were in the records. They were not found by the surveyors, however, and it is the operator’s responsibility to make the records available. This constitutes a Class III violation. Under the rules supporting citation Tag A-703, a facility must have an ongoing activities program into which the residents have input. On December 30, 1997, Ms. DaSilva interviewed the residents who indicated there was no activities program at Four Palms. Ms. DaSilva observed no planned activities taking place over the six to seven hours she was there. This deficiency was re-cited during the March 1998 survey. Again, Ms. DaSilva interviewed the residents who indicated they watched TV or walked. A calendar of activities was posted, but there was no indication any were taking place, and upon inquiry, a staff member indicated none were being done that day. The activities calendar provided by the staff member merely listed potential activities, but did not indicate when or where they would take place. Ms. DaSilva again cited the facility for a deficiency in its activities program as a result of the October 1998 survey. At this time, she observed no activities during the time she was at the facility. The staff member on duty reported that the planned activity was not done because she did not have time to do it. At that time, residents were observed to be lying on their beds or watching TV. The one staff person on duty was cooking, cleaning, or helping residents with care issues. This is a Class III deficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Respondent renewal of a license to operate Four Palm Manor, an assisted living facility at 302 11th Avenue, Northeast in St. Petersburg, Florida; granting renewal of the ECC license for the same facility; and finding Respondent guilty of Class III deficiencies for Tags 403, 406, 504, 505, 602, and 703 on the surveys done on December 30, 1997, and March 26, 1998. An administrative fine of $100 should be imposed for each of Tags 403, 404, 504, and 505. DONE AND ENTERED this 13th day of December, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1999. COPIES FURNISHED: Karel L. Baarslag, Esquire Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 Renee H. Gordon, Esquire Gay and Gordon, P.A. Post Office Box 265 St. Petersburg, Florida 33731 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
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
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Azalea Manor operated a licensed 20-bed assisting living facility in St. Petersburg, Florida. Azalea Manor houses its residents primarily in two buildings. The buildings will be referred to herein as the Big House and the Small House. On January 20, 2011, S.M. was a resident of Azalea Manor and resided in the Small House. In addition to certain physical ailments, S.M. suffered from dementia. S.M. is approximately six feet tall, and on the date in question, weighed about 150 pounds. For at least several months leading up to, and including January 20, 2011, S.M. was prescribed medication for psychosis, depression, confusion, and memory loss. On January 20, 2011, S.M. was 65 years of age. On January 20, 2011, Joyce Spiker (Ms. Spiker) was employed by Azalea Manor as a caregiver. On January 20, 2011, the date upon which the instant action is based, Ms. Spiker was 66 years old, five feet, five inches tall, and weighed 300 pounds. Rasheena Nicole Wade (Ms. Wade), an Azalea Manor employee, started working for Azalea Manor on January 13, 2011. Ms. Wade's job duties included waking residents in the mornings and assisting them with getting dressed. Prior to January 20, 2011, Ms. Wade had worked with S.M. on one prior occasion and was generally unfamiliar with S.M. and her morning preferences and tendencies. On the morning of January 20, 2011, Ms. Wade was tasked with helping S.M. get dressed. Ms. Wade asked S.M. to get dressed several times, but for whatever reason, S.M. refused to do so. S.M. told Ms. Wade multiple times that she was not going to get dressed, and in furtherance of her general disposition of defiance, S.M. repeatedly slammed doors throughout her immediate living area. S.M. was obviously in an agitated state and Ms. Wade, being generally unfamiliar with S.M., called to the Big House for assistance. Ms. Spiker fielded Ms. Wade's phone call. In response to Ms. Wade's call for help, Mike, the son of the owner of Azalea Manor, went to the building where S.M. was located. Upon entering the building, Mike noticed that S.M. was not dressed. Mike encouraged S.M. to get dressed, but she refused. S.M. continued slamming doors and otherwise stating that she was not going to get dressed. Mike then advised S.M. that he was going to call Ms. Spiker and have her to come to the Small House to aid her in getting dressed. Mike then left the area where S.M. was located and phoned Ms. Spiker and asked for her assistance. Ms. Spiker, at the time of Mike's call, was still located in the Big House. Mike explained to Ms. Spiker the difficulty that he was having with S.M. and requested that she take over the situation with S.M. Before Ms. Spiker arrived at the Small House, Mike left the Small House and headed back towards the Big House. En route to the Big House, Mike encountered Ms. Spiker who was on her way to see S.M. During his encounter with Ms. Spiker, Mike again explained to her the difficulty that he was having with S.M. Following his discussion with Ms. Spiker, Mike returned to the Big House and Ms. Spiker went to the Small House and met with S.M. When Ms. Spiker arrived at the Small House, Ms. Wade was still present and witnessed the interaction between Ms. Spiker and S.M. that provides the basis for the instant action. When S.M. saw that Ms. Spiker had arrived at the Small House, she calmed down, went into her room, and started getting dressed. However, after making some progress towards getting dressed, S.M. again started to verbalize that she did not want to get dressed. Ms. Spiker told S.M. to finish getting dressed. Per Ms. Spiker's directive, S.M. finished putting on her clothing items, but refused to put on her sneakers. At this point, S.M. placed one of the sneakers on her bed and announced that she was not going to put the shoe on her foot. In response to S.M.'s pronouncement, Ms. Spiker grabbed the shoe, hit S.M. in the middle of the forehead with the sole of the shoe, then threw the shoe in S.M.'s lap and told her to put the shoe on her foot. S.M. then grabbed the shoe and threw it at Ms. Spiker. S.M. and Ms. Spiker then launched into a short volley of angry expletives. Soon thereafter, S.M. capitulated and placed the shoe on her foot. Ms. Wade was approximately four feet from Ms. Spiker and S.M. when the exchange occurred. S.M. did not sustain any injuries resulting from being hit on the forehead with the shoe. Within seconds of S.M.'s placing the shoe on her foot, one of the other residents in the Small House informed Ms. Wade that another resident had become very upset after overhearing the fracas between S.M. and Ms. Spiker. Ms. Wade immediately left the area where S.M. and Ms. Spiker were located so that she could tend to the needs of the resident that had become upset. At this point in time, Ms. Spiker was alone with S.M. The evidence is inconclusive regarding the amount of time that Ms. Spiker and S.M. were alone in S.M.'s room. However, what is clear is that Ms. Wade, after having calmed the resident that had become upset, noticed when she saw S.M. about 15 minutes after having left S.M. alone with Ms. Spiker, that S.M. "had red on her lip." Ms. Wade believed that the "red" on S.M.'s lip was lipstick. It was eventually determined that the "red" was not lipstick, but instead was blood. On the day in question, S.M. had extremely dry and cracked lips. Soon after Ms. Wade saw S.M.'s red lips, S.M. left the Small House and went to the Big House where she found Nicole Wiggins (Ms. Wiggins). Upon seeing Ms. Wiggins, S.M. immediately ran to Ms. Wiggins and embraced her around the neck. Ms. Wiggins had worked with S.M. for several months prior to the incident and was someone with whom S.M. would converse with on occasion. S.M. was extremely upset and was literally shaking with fear when she embraced Ms. Wiggins. When Ms. Wiggins freed herself from S.M.'s embrace, she noticed that there was blood on S.M.'s lips. Ms. Wiggins asked S.M. about her bloody lips and S.M. explained that her lips were bloody because Ms. Spiker had pushed and kicked her in the face. Ms. Wiggins took S.M. to the bathroom in order to clean the blood from S.M.'s lips. During the process of trying to remove the blood from S.M.'s mouth, Ms. Wiggins noticed a small puncture wound on the inside of S.M's upper lip that was actively bleeding. Ms. Wiggins applied pressure to the wound and eventually the bleeding stopped. As a consequence of the incident, S.M. was allowed to stay home from work on January 20, 2011. Based on the current record and given Ms. Spiker's physical characteristics, the undersigned is unable to find as a matter of fact that Ms. Spiker kicked S.M. in the face, thereby causing blood to appear on S.M.'s lip. Ms. Wiggins reported the incident to her immediate supervisor and then reported the same to the DCF abuse hot-line (abuse hot-line) and the St. Petersburg Police Department. Additionally, Ms. Wade also reported the incident to the abuse hot-line. On January 20, 2011, an officer from the St. Petersburg Police Department was dispatched at approximately 10:15 a.m., to Azalea Manor to investigate the incident involving S.M. Upon arriving at Azalea Manor, the investigating officer spoke with S.M. and Ms. Wiggins regarding the incident. Ms. Spiker was not present during the officer's initial visit, but she subsequently met with the officer during the afternoon of January 20, 2011. As a part of the investigation, the officer asked Ms. Spiker if she knew Rasheena's (Ms. Wade) surname. Because Ms. Wade was a new employee, Ms. Spiker advised the officer that she did not know Rasheena's surname. In order to assist the officer, Ms. Spiker called Mr. McKenzie, explained to him why she was calling, and handed the phone to the police officer so that he could speak with Mr. McKenzie. The police officer spoke to Mr. McKenzie while in the immediate presence of Ms. Spiker. Although the investigating officer was able to secure Ms. Wade's surname, the officer never interviewed Ms. Wade as part of the investigation. The investigating officer determined that the allegations were criminally unfounded and the investigation was closed. In response to the abuse hot-line report, DCF, on January 20, 2011, also dispatched an investigator to Azalea Manor. When the DCF investigator arrived at Azalea Manor on the afternoon of January 20, 2011, the officer from the St. Petersburg Police Department was present. The DCF investigator met with Mr. McKenzie and informed him of the reason for her visit. During the meeting with the DCF investigator, Mr. McKenzie advised that he had already spoken with the officer from the St. Petersburg Police Department about the incident involving S.M. On January 21, 2011, the Department was contacted regarding the incident between Ms. Spiker and S.M. In response to notification of the incident, the Department, on January 24, 2011, visited Azalea Manor. While visiting Azalea Manor, the Department interviewed Mr. McKenzie and several employees. The Department's interview with Mr. McKenzie commenced at approximately 11:20 a.m. As a part of the Department's questioning of Mr. McKenzie, inquiry was made as to why he had not filed the initial adverse incident report. In response to this inquiry, Mr. McKenzie advised that he was unaware of the requirement for doing so. Within a few hours of completing his meeting with the Department, Mr. McKenzie filed the initial adverse incident report, which is officially entitled, "Assisted Living Facility Initial Adverse Incident Report – 1 Day (Day 1 Form)." Mr. McKenzie did not file a 15-day full report. Noted on the Day 1 Form was a check mark signifying that the incident had been reported to law enforcement officials. The Day 1 Form was signed by Mr. McKenzie. On January 24, 2011, Mr. McKenzie also fax filed an incident report with the Agency for Persons with Disabilities. On January 25, 2011, Mr. McKenzie issued a verbal warning to Ms. Spiker and provided her with refresher training on appropriate strategies for dealing with challenging situations. Mr. McKenzie also discussed the incident with S.M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order and, therein, dismiss Count I of the Administrative Complaint and assess against Respondent, Eastwinds of Florida, Inc., d/b/a Azalea Manor of St. Peterburg, an administrative fine of $1,200 and a survey fee of $500. DONE AND ENTERED this 19th day of January, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of January, 2012.
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk 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 General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondents, Liang Jian and Doinghui Lee (Owners), discriminated against Petitioner, Gabriel Sauers (Sauers), through actions of the Owners’ representative, Joseph Palmer (Palmer), on the basis of Sauers' purported handicap in violation of the Florida Fair Housing Act.
Findings Of Fact Sauers is a young Caucasian male with purported disabilities, including post-traumatic stress disorder, ADHD, Oppositional Defiance Disorder, and others. He is a high school graduate, having received his education in an exceptional student education class. Sauers did not testify as to whether he is currently employed. He receives food stamps and Supplemental Security Income from the Social Security Administration. That income appears to be his sole means of support. The Owners (who did not appear at the final hearing) are Asians. The property at issue (referred to herein as the Apartments) is a multi-family residential building located at 419 North Wild Olive Avenue. At all times relevant hereto, Sauers was residing in Apartment #7, an efficiency apartment. In October 2012, Sauers rented a one-bedroom apartment from the Owners. Palmer was the manager of the Apartments and handled the negotiations with Sauers for the apartment. After a short time living in the apartment, Sauers asked to rent the efficiency apartment instead of the apartment he had originally leased. There was a difference of about $100 per month in rent between the two apartments. On or about November 1, 2012, Sauers moved into the efficiency apartment, i.e., Apartment #7. Sauers had inspected the apartment and did not list any concerns on his written lease agreement. After living for a short time in the efficiency, Sauers asked for a different refrigerator because the one in the efficiency was too small. He asked that the refrigerator from his prior apartment be moved down to the efficiency or that one be purchased for the efficiency as a replacement. Palmer told Sauers that he (Sauers) could purchase a refrigerator and Palmer would give him a $100 credit on his rent. Sauers never purchased a refrigerator and Palmer did not take any further action on Sauers’ request. While living in the efficiency, Sauers heard loud music being played in one of the other apartments on a regular basis. Sauers’ efficiency was in a building other than where the other apartments were located, but it was in close proximity. Sauers also reported seeing drug transactions taking place around the Apartments. He reported his findings to Palmer, but Palmer just told him to call the police. Sauers called the police on multiple occasions. Sauers had arguments and disagreements with other residents residing in the apartment complex. He admitted that his psychological conditions caused him to argue with other residents from time to time, but said he was singled out by some residents. Sauers raised complaints about the presence of palmetto bugs and roaches in his efficiency. However, the entire complex was under an extermination contract and Ryan’s Pest Control came out regularly to spray for insects. Some invoices and statements from Ryan’s were offered into evidence, but Sauers maintains they only address a few days of his residence at the Apartments. It is likely there were bugs in the efficiency; it is also true that Palmer and the Owners attempted to minimize the problem by having regular pest control service. The stove/oven in the efficiency was improperly grounded when Sauers moved in. He received several electrical shocks when touching the stove. Palmer was made aware of the problem and contracted with Parks Electric Company to remedy the situation. On April 25, 2013, the stove was rewired to alleviate the electrical problem. The Owners had a policy in place that tenants would pay their rent by way of a certified check or money order. Sauers often requested and was allowed to pay in cash. Sauers complained frequently to Palmer about the condition of the efficiency, the dangerous environment around the apartment complex, and other real or imagined problems. Sauers’ father, who helped Sauers move into the apartment complex and notified Palmer about some of Sauers’ disabilities, agreed that the area around the Apartments seemed unsafe. The father, a large man, was accosted on one of his visits to the Apartment, by some unknown person. Sometimes Sauers’ mother would call Palmer to ask questions or raise concerns. She was never able to reach him via telephone, but Palmer returned her calls--to Sauers’ father’s phone--on many occasions. It is abundantly clear that Sauers and Palmer do not get along well. When Sauers was absent from his apartment for several weeks in the summer of 2013, Palmer assumed that the efficiency had been abandoned. He placed a three-day notice on the door of the efficiency, telling Sauers he had to pay the rent which was due or that eviction proceedings would be commenced. When notified that Sauers did not plan to return to the apartment, Palmer went in--only to find that the efficiency was filthy and required significant cleaning. Sauers claims discrimination on the part of the Owners because Palmer had asked him to vacate the apartment at one point in time. The suggestion, made by Palmer, was based on Palmer’s perception that Sauers was extremely unhappy living at the apartment complex. Sauers failed to show that any other residents at the complex were treated differently or that Sauers was denied any reasonable accommodations for his needs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Gabriel Sauers in its entirety. DONE AND ENTERED this 9th day of May, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of May, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michael Paul Kelton, Esquire Paul, Elkind and Branz 142 East New York Avenue Deland, Florida 32724 Gabriel P. Sauers Unit 1 1111 Ocean Shore Boulevard Ormond Beach, Florida 32176 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Thomas Singleton, Jr. should have the ACLF license application denied for incidents alleged to have occurred on January 13, 1978, when the Respondent spoke with slurred speech and was inarticulate in trying to discuss matters of the care and protection of the residents of his licensed facility and further for the reason that later in the day on January 13, 1978, members of the Petitioners staff went to the licensed premises and found insufficient qualified staff to assure the safety and proper care of the residents; found that the Respondent, or the person acting in the official capacity was not on duty, alert and appropriately dressed; found that the administrator had failed to insure that the staff as mentally and physically capable of performing their assigned duties and found that the facility failed to have at least one staff member on call at all times for the benefit of the residents. Whether or not the Respondent, Thomas Singleton, Jr. should have his ACLF license application denied for allegedly issuing certain checks, to wit: check no. 138, dated January 13, 1978, in the amount of $40.00; check no. 149, dated January 13, 1978, in the amount of $10.00, drawn on the Atlantic Hank of Springfield and unpayable due to "insufficient funds"; and issuance of a check in the amount of $50.00, on January 15, 1978, and alleged to be nonpayable due to insufficient funds.
Findings Of Fact Thomas Singleton, Jr. is the holder of ACLF License No. P-4-l6-0089C held under the provisions of Chapter 400, Part II, Florida Statutes. This is a form of temporary license for operating adult congregate living facilities. Mr. Singleton is also an applicant for a permanent license for operating an adult congregate living facility. Carolyn Bothwell, is a social worker with the Department of Health and Rehabilitative Services, who specifically works in the field of aging and adult services. Some of her clients were residents of Tom's Rest Home, 1834 Silver Street, Jacksonville, Florida, which is owned and operated by Thomas Singleton, Jr. On January 10, 1978, Ms. Bothwell received a call from Mr. Singleton In which Mr. Singleton expressed some consternation about trying to collect money owed by one of his former boarder's at Ton's Rest lone. In Ms. Bothwell's opinion, Mr. Singleton's speech was slurred and he seemed very different than for prior contacts with him. On January 15, 1978, Mr. Singleton came to her office to further discuss the problem about the payment by the boarder. His appearance was disheveled and his speech was incoherent. In this conversation of January 13, Singleton also mentioned that his wife had left him and that he wanted Ms. Bothwell to be at the boarding home when he told the boarders of his wife's departure. Ms. Bothwell went to the location of the boarding hone around 12:00 noon on the date, January 13, 1978, in the presence of other members of the Department of Health and Rehabilitative staff. When she arrived at the boarding home, she discovered that the boarding home was locked and the boarders were on the front porch, locked out of the hone. Mr. Singleton had difficulty remembering why he had gone to meet with Ms. Bothwell earlier that day and made no mention of the fact that his wife had left. In Ms. Bothwell's opinion he appeared very vague and confused. Ms. and the other members departed the premises a short time later. On that same date, January 13, 1978, June K. Frye, a District Program Specialist, with the Department of Rehabilitative Services dealing with adult congregate living facilities, spoke with Mr. Singleton. This conversation apparently took place in the morning. In the course of the conversation Ms. Frye mentioned that she had called Mr. Singleton to advise him of an upcoming reinspection on the question of considering his probationary license status. Ms. Frye felt that Mr. Singleton was incoherent and unable to give concrete information about the license situation. She asked to speak to someone else at the facility but Mr. Singleton was unable to assist her in that request. Prior to this conversation with Mr. Singleton, Ms. Frye had never noticed any slurred speech or inability on the part of Mr. Singleton to respond to requests or to give information. Later that afternoon, Ms. Frye, in the presence of Mr. Otto G. Hrdlicka, went to the facility at 1834 Silver Street. When they arrived they found that Bertie Mae Baldwin was in charge of the facility. Mr. Singleton's wife was not at the-facility and Mr. Singleton was on the bed in his room, out of contact with the boarders. Several attempts were made to awaken Mr. Singleton, but none of those attempts were successful. It should be mentioned that Mrs. Baldwin was hired as a housekeeper whose hours were from 9:00 a.m. to 3:00 p.m. each day and at the time of the visit by Mrs. Frye and Mr. Hrdlicka, Ms. Baldwin was preparing to leave the facility. Ms. Baldwin had no responsibility in terms of cooking the food or attending to the overall needs of the boarders in the home. Testimony was also given in the course of the hearing that Mr. Singleton had written a check for insufficient funds to April Russel on January 15, 1978. This check was in the amount of $50.00. Restitution was made on the check, however. Testimony was also given that Mrs. Frye had been approached by Marion Thomas, a cab driver who claimed that Mr. Singleton had written him checks on January 13, totaling $50.00, for which there were no sufficient funds. Again restitution was made for those checks. A representative of the Atlantic Hank of Springfield, Jacksonville, Florida, testified in the course of the hearing and indicated that the operating account of Mr. Singleton for his business Tom's Rest Hone had been closed out in February at a time when the account was overdrawn $151.90. Subsequent to the January 13, 1978, incidents at the rest home, the boarders have been moved and placed in other facilities. Part of the motivation for such removal was due to the fact that some of the patients had cone to the boarding home after being released from the Northeast Florida State Hospital, at Macclenny, Florida, an institution for the treatment of patients with mental illness. It was felt by the program coordinators of the adult congregate living facilities that Mr. Singleton would be unable to properly care for those individuals and others in his boarding home and in view of the fact that no other employees were in a position to take care of the needs of the individual boarders, the decision was made to remove them from Tom's Rest Hone. Mr. Singleton gave testimony in the course of the hearing and indicated that he had suffered a severe stomach disorder beginning in April, 1977 and had undergone an operation to remove part of his colon. He says this caused him to take a number of pills as treatment. In addition he indicated that he had had some domestic problems with his wife. He also stated that on January 19, 1978 through January 23, 1978, he received psychiatric treatment in a local hospital, in Jacksonville, Florida, for his condition. He described the condition as a collapse of his nerves, which was brought on, according to Mr. Singleton, by failure of the treating physician who dealt with his colon problem to respond to a need to control his blood pressure. The events of January 13, 1978, and the state of Mr. Singleton's finances have lead to a complaint letter of January 19, 1978. Mr. Singleton has received that letter and been given an opportunity to respond to it. The complaint letter falls into two broad categories. The first category pertains to the matters of January 13, 1970 and the second category pertains to the financial situation of Mr. Singleton. Under the matters of January 13, 1978, the Department of Health and Rehabilitative Services has alleged violations of Chapter 10A-5.06(5)(b)(2); 10A-5.00(1), (4)(a), and (6), Florida Administrative Coda, and Section 400.414(2)(a)(d) and Section 400.441(2), Florida Statutes. Those provisions read respectively: 10A-5.06 Operational Standards. Facilities shall offer close supervision and living conditions as is necessary to the condition of the resident. This includes supervision of diets as to quality and quantity, and watchfulness ever the general health, safety and wellbeing of residents. There shall be daily awareness of the residents by designated staff of the facility as to the apparent well-being of the individuals with sufficient provision for contacting the resident's physician, if the resident has not already done so, at any time there appears to be significant deviation from his normal appearance or state of health and well-being. Appropriate notice of such instances shall be recorded in the personal records of the individual. * * * (5) The minimum personnel staffing for adult congregate living facilities shall be: * * * 2. There shall be at least one staff member on call at all times when residents are in the facility. 10A-5.09 Personnel Standards. The administrator of a facility shall: Provide such qualified staff as are necessary to assure the safety and proper care of residents in the facility. * * * (4) Assure that each person serving in any official capacity in the facility shall: (a) Be on duty, alert and appropriately dressed during the entire tour of duty. In smaller facilities it is permissible for the administrator to he on call during normal sleeping hours. * * * (6) Insure that the staff is mentally and physically capable of performing their assigned duties. They shall be free of any communicable diseases which would present the hazard of transmission to resident or other staff member. If any staff member is found to have or is suspected of having such disease, ha will be removed from his duties until the administrator determines that such risk no longer exists. 400.414 Denial, suspension, revocation of license; grounds. * * * Any of the following actions by a facility or its employee shall be grounds for act ion by the department against a facility: An intentional or negligent act materially affect- ing the health or safety of a resident of the facility * * * (c) Violation of the provision of this act or of any minimum standard or rule promulgated hereunder. 400.441 Rules establishing minimum standards. Pursuant to the intention of the Legislature to provide safe and sanitary facilities, the department shall promulgate, publish, and enforce rules to implement the provisions of this act, which shall include reasonable and fair minimum standards in re- lation to: * * * (2) The number and qualifications of all personnel having responsibility for the care of residents. It is established through the evidence that at all times on January 13, 1978, when the events as described took place, those boarders who had been assigned to Tom's Rest Home were living in that facility. Therefore, an examination of the events of January 13, 1978, as reported above, in view of the requirements set forth in the Florida Administrative Code which are related herein; demonstrates that Thomas Singleton, Jr. was in violation of those conditions and is subject to the penalties for such violation, to include revocation of the temporary licence ACLF License no. P-4-l6-009C and the denial of an unrestricted license. Moreover, the financial disarray of Mr. Singleton's business account for Tom's Rest Home, which was shown in the months of January and February, 1978, demonstrates a violation of Rule 10A-5.08(1), Florida Administrative Code, which reads: 10A-5.08 Fiscal Standards. The administrator of a facility shall maintain fiscal records in accordance with the requirements of Chapter 400 F.S., Part II. There shall be a recognized system of accounting used to accurately reflect details of the business including residents' "trust funds" and other property. The fiscal and "trust fund" records shall reflect a verified statement. The facility shall: Be administered on a sound financial basis consistent with good business practices. Evidence of issuance of bad checks or accumulation of delinquent bills for such items as salaries, food, or utilities shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the facility in accordance with the requirements of Chapter 400 F.S., Part II. This would also establish a sufficient basis for denying any application for an unrestricted license, because it would show that the applicant has failed to demonstrate satisfactory proof of financial ability to operate and conduct the facility as required by Section 400.411(2), Florida Statutes.
Recommendation It is recommended that the permanent license to operate an ACLF facility as requested by Thomas Singleton, Jr. be denied. DONE AND ENTERED this 17th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert M. Eisenberg, Esquire Department of HRS Post Office Box 24l7F Jacksonville, Florida 32231 Thomas Singleton, Jr. Ton's Rest Hone 1834 Silver Street Jacksonville, Florida 32206
Findings Of Fact Petitioner Department of Health and Rehabilitative Services (hereinafter the Department), filed an Administrative Complaint alleging that Respondent, The Villa Cabana, Inc. (hereinafter Villa Cabana), violated minimum licensing standards for an Adult Congregate Living Facility in the following manner: The Respondent failed to assure, and have available documentation, that each person employed by the facility, who may come into contact with potentially infectious materials is trained in infection control procedures for blood and other bodily fluids. It was further alleged that the deficiency was found to exist during the surveys completed on July 31, 1989 and July 18, 1990. By letter dated January 5, 1991, the administrator for Villa Cabana disputed the allegations set forth in the Administrative Complaint and requested a formal hearing. During the hearing, the Department presented one witness and filed two exhibits, which were admitted into evidence. The Respondent called two witnesses, and showed the Hearing Officer the nursing license of Floretta Young. A transcript of the proceeding was not ordered. Both parties waived their opportunity to submit proposed findings of fact.
Recommendation Based upon the foregoing, it is RECOMMENDED: The Respondent be found guilty of having violated Rule 10A-5.019(5)(h), Florida Administrative Code, during the survey conducted on July 18, 1990, as alleged in the Administrative Complaint. The alleged violation of the same Florida Administrative Code provision which was recorded in the survey conducted July 31, 1989, be considered as an improperly classified deficiency. The July 18, 1990 violation be deemed the facility's first offense of Rule 10A-5.019(5)(h), Florida Administrative Code. The civil penalty which the Department seeks to assess against the facility administrator be dismissed as such penalties may only be imposed if the violation is a repeated offense. DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELL Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th of April, 1991. COPIES FURNISHED: Paula M. Kandel, Esquire HRS - Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 Keith Young, Administrator The Villa Cabana 2600 - 4th Street South St. Petersburg, Florida 33705 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Dr. Carmen M. Feril was employed by the Florida State Hospital as a psychiatrist II effective March 5, 1976, which appointment was made with full staff privileges. Dr. Feril was offered housing on the hospital grounds when she began employment there in 1976. She was subsequently asked by hospital officials to vacate her house which request dated January 9, 1978 and signed by Daniel Atoman, M.D., acting Clinical Director who on January 9, 1978, requested that Ms. Feril vacate quartes no. 263 by March 1, 1978, since [she] was not occupying the residence full-time". It is based on this request from acting Clinical Director Atoman that the Petitioner initiated the petition here in pursuant to Chapter 120.57(1), alleging that her substantial interests were being affected by the Respondent, Department of Health and Rehabilitative Services. At all times material herein, the housing policy in effect which is the subject matter of this petition, was dated March 31, 1977, and is contained in Petitioner's Exhibit 1. The parties stipulated that the Respondent offers housing to professionals at a reduced and attractive rental as an inducement to secure professionals. Doctors and other professionals at the hospital are given a written contract of employment which includes no provisions for housing nor is there any written contract of housing. The Petitioner introduced no evidence of an oral contract for housing other than her statement that she was told that housing was available and that other inducements of employment such as laundry and dining room services were in effect on a modified basis. More than half of the doctors employed at the hospital live on the grounds and most also maintain private residences. The pertinent part of the housing policy in effect and which is contained Petitioner's Exhibit 1 provides as follows: Should the needs of an employee for housing space change materially, housing assignments will be reviewed to accommodate these needs as nearly as circumstances permit. The Respondent, relying upon such provision asked the Petitioner to leave when the housing committee learned that during May, 1977, Petitioner bought a home in Tallahassee. Based on the Respondent's determination that the Petitioner, having purchased the residence in Tallahassee and was therefore under utilizing the house on the hospital grounds, asked her (Petitioner) to vacate pursuant to provision D-2 of the housing policy. Since the Respondent was involved in on going efforts to attract a new clinical director. Petitioner was offered the opportunity to present her views to the housing committee in a meeting which lasted approximately one hour. Based on the committees unanimous opinion, she was asked to vacate the house on the hospital grounds. Other factors relied upon by Respondent was the committee's unanimous opinion, when was asked to vacate the house on the hospital grounds. Other factors relied upon by Respondent was the committees determination that Petitioners children, ages 14, 15 and 10, were all enrolled in schools in Leon County since September, 1977; Petitioner's substantial amount of time spent at the Leon County residence and the Respondent's need to utilize the facility then occupied by Petitioner to attract a new clinical director. Respondent introduced testimony to the effect that the housing committee was in the process of reviewing all housing assingments in an effort to free up housing for new recruits and that the committee had, in the past, requested a doctor to vacate his hospital quarters because he had other available housing. Based on the foregoing and the absence of any evidence that housing was not a contractual right of employment but was rather a convenience provided by Respondent on an as available and as needed basis as explained in the housing policy plus the fact that the housing policy authorizes the committee to reevaluate an employees housing needs and to make changes based on a change in need, the conclusion is inescapable that Respondent was here authorized to request the Petitioner to vacate the quarters provided her on the hospital grounds pursuant to Section D-2 of the housing policy. The Respondent here afforded Petitioner notice of its intended actions and provided her an opportunity to voice any concern respecting any alleged breach by Respondent of the effective housing policy. Petitioner having failed to introduce any evidence showing that the action by Respondent in implementing the notice provisions of the housing policy to request Petitioner to vacate the quarters afforded her was in any manner arbitrary or capricious, I shall recommend that this agency action be upheld.
Recommendation Based on the foregoing findings of fact and conclusions of law it is hereby recommended that the action of the agency in requesting that the Petitioner vacate the premises cited herein be sustained. RECOMMENDED this 19th day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jon D. Caminez, Esquire 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32304 Donna Stinson, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301
