Conclusions Respondent Orange County School Board, pursuant to the September 22, 2010 order of Administrative Law Judge Susan Harrell, hereby accepts jurisdiction of this matter. Based upon the advice of counsel, Respondent Orange County School Board hereby enters a final order rejecting all bids in this matter so as to issue a new invitation to bid for provision of occupational and physical therapy services. This action is being taken to clarify standards by which the SCHOOL BOARD will award the bid. DONE AND ORDERED THIS 14" Day of December, 2010. THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA Filed December 17, 2010 4:16 PM Division of Administrative Hearings APPEAL OF FINAL ORDER This Order may be appealed by filling two copies of a notice of appeal accompanied by a filing fee, as provided in §120.68, Fl. Stats. and Fla R.App.P. 9.100(b) and (c) within thirty (30) days of the rendition of this final order. CC: Administrative Law Judge Susan Harrell Counsel of Record
Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Notice of Intent to Deny and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The Petitioner requested a formal administrative hearing. 4. The Agency filed an Unopposed Motion to Relinquish Jurisdiction with the DOAH and an Order Closing File and Relinquishing Jurisdiction was entered by the Administrative Law Judge. 5. The Agency then filed a Notice of Voluntary Dismissal without Prejudice on January 27, 2014 (Ex. 2), and agreed to grant the Petitioner’s request for renewal of license. Based upon the foregoing, it is ORDERED: 1. The Notice of Intent to Deny is withdrawn. , ORDERED at Tallahassee, Florida, on this 2 day of A 2014. pk Eliza Dudek, Se ry Agercy/for Healt Administration 1 Filed March 31, 2014 3:55 PM Division of Administrative Hearings
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this .3/ y of Ze le 2014. — XO Richard Shoop, BA e Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Nelson E. Rodney, Senior Attorney Facilities Intake Unit Office of the General Counsel (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Gabriela Roman, Administrator Phoenix Senior Living II 5882 NW 73 Court Parkland, FL 33067 Romal531@gmail.com (US Mail and Electronic Mail) Todd P. Resavage Administrative Law Judge Division of Administrative Hearings (Electronic Mail) AUBOOQ 4S FIORIDA AGENCY FORHEATH CARE ADMINSTIATION aOveanon Better Health Care for all Floridians So eeaeranes i February 22, 2013 Certified Mail GABRIELA JANETA ROMAN, ADMINISTRATOR File Number: 11966400 PHOENIX SENIOR LIVING IL, INC. ; : License Number: 10598 | —vjeenerrereneeS B82.NW.T3IRD-COURT . Certified Article Number an . penne ape PARKLAND, FL 33067 i ECEIVE > PLAL OCS 9121 64923 3670 FACILITY Inthe UNIT RE: Case Number: 2013002145 SENDERS RECORD - FEB 26 2013 NOTICE OF INTENT TO DENY Agency for Health Dear Ms, Roman: Care Administration It is the decision of this Agency that the Phoenix Senior Living IU, Inc.'s renewal application for an Assisted Living Facility license be DENIED. The Specific Basis for this determination is a pattern of deficient performance as evidenced by failure to pass a complaint survey, conducted on May 3, 2012 and a resurvey conducted on June 28, 2012. There were two Class I, four Class II, and six Class III deficiencies cited on the first survey. None of those deficiencies were corrected on the resurvey visit. During the complaint survey revisit the provider was cited for two additional Class II deficiencies for failure to cooperate with Agency personnel during the resurvey as evidenced by failing to make records available for inspection to ascertain compliance with resident care standards and by denying full access to residents, staff and resident records to determine if previously cited deficiencies had been corrected. : ‘Therefore the Renewal application is DENIED based upon sections 408.806(1)(g); 408.811; 408.815(1)(b), (c) and (d), and 429.14(1)(a), (e) and (k); 429.28(1)(a) and (b); and 429,34, Florida Statutes, and Rule 58A-5.033, Florida Administrative Code. EXPLANATION OF RIGHTS Pursuant to section 120.569, Florida Statutes, you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under section 120,57(1), Florida Statutes, your request for an administrative hearing must conform to the requirements in section 28-106.201, Florida Administrative Code, and must state the material facts you dispute, SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, ex Haston, Manager Assisted Living Unit Bureau of Long Term Care Services SH/alfredj Copy to: Delray Beach Field Office - 10 LTCOC District 10 You ane EXHIBIT 2727 Mahan Drive, MS#34 § dt Visit AHCA online at ’ Tallahassee, Florida 32308 4 ahca.myfiorida.com STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: PHORNIX SENIOR LIVING Tl, INC. CASE NUMBER: 2013002145 eee te ~ELECFION-OF-RIGHTS aan This Election of Rights form is attached to a proposed Notice of Intent to Deny of the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within twenty-one (21) days of the day you receive the attached Notice of Intent_to _Impose_a Fine, Administrative Complaint or any other proposed action by AHCA. If an Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action, you will have given up your right to contest the Agency’s proposed action and a final order will be issued, (Please reply using this Election of Rights form unless you, your attomey or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) Please return your ELECTION OF RIGHTS to: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: (850) 412-3630 Fax: (850) 921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS: OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object and have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the proposed penalty, fine or action. OPTION TWO (2)_ T admit to the allegations of facts and law contained in the Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), ’ Florida Statutes) where I may submit testimony and written evidence to the Agency to show that ‘the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) I dispute the allegations of facts and Jaw contained in the | Notice of Intent to Impose a Fine, Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57( 1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing - before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It Tust be received by the Agency Clerk at the address above within twenty-one (21) days of your receipt of this proposed administrative action. The request for formal hearing must conform to —the requirements of Rule 28-106.2015,~Blorida—Administrative Code, which requir es-thatit. contain: 1. - Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. ; 2. The file number of the proposed action, ; 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, License type: Assisted Living Facility License number: 10598 Licensee Name: PHOENIX SENIOR LIVING U, INC. Contact person: Name Title Address: Street and number City Zip Code Telephone No, Fax No. Email (optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: : Date Print Name: Title: STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION PHOENIX SENIOR LIVING II, Petitioner, AHCA No: 2013002145 vs. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE COMES NOW the Respondent, the Agency for Health Care Administration, by and through undersigned counsel, and states the following: 1. This case was started by a Notice of Intent to Deny issued by Respondent on February 22, 2013. 2. Petitioner requested a formal hearing. 3. The case was set for a hearing within the Division of Administrative Hearings for January 28-29, 2014. 4. An unopposed Motion for the Relinquishment of Jurisdiction was filed on January 23, 2014. 5. Jurisdiction in this case was relinquished back to the Agency for Health Care Administration on January 23, 2014. 6. Respondent now wishes to dismiss the Notice of Intent to Deny the license renewal for Petitioner facility and grant their request for a renewed license. EXHIBIT i 7 _ WHEREFORE, Petitioner respectfully requests that the Agency dismiss this case and enter a Final Order granting Petitioner the renewal of their license. r Respectfully submitted this Q 7 day of \[axuany _, 2014. Nelson E. Rodney CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished electronically to Gabriela Roman, Administrator, Phoenix Senior Living II, at romal531@gmail.com on Fanssac ual , 2014. ie 42 Nelson Rodney, Esquire Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53% Street Suite 300 Miami, FL 33166
Conclusions Respondent Orange County School Board hereby adopts the Order Dismissing Case for Lack of Jurisdiction and Relinquishing Case to Respondent issued by Administrative Law Judge Thomas P. Crapps on September 14, 2012 (attached hereto) as its Final Order in this matter and dismisses the bid protest of Petitioner Stanley Convergent Security Solutions, Inc. DONE AND ORDERED THIS Ze Day of Spfenbe~ , 2012. THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA APPEAL OF FINAL ORDER This Order may be appealed by filling two copies of a notice of appeal accompanied by a filing fee, as provided in §120.68, Fl. Stats. and Fla.R.App.P. 9.100(b) and (c) within thirty (30) days of the rendition of this final order. CC: Administrative Law Judge Thomas P. Crapps Bret Painter, Stanley Security Solutions, Inc. Inc. John C. Palmerini, Esq. Filed September 28, 2012 10:33 AM Division of Administrative Hearings
The Issue The issue posed for decision herein is wither or not the Petitioner, Sandra Carter's discharge by the Respondent on May 1, 1979, should be upheld based on Respondent's contention that the Petitioner "feigned sickness" after she had requested leave without pay which was denied.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Sandra J. Carter, petitioner, had been employed by the Lee County District School Board as a bus driver for more than three (3) years when she was terminated on May 1, 1979, for "unexcused absences". On April 12, 1979, Petitioner filed a personal leave request for permission to be absent from her job as a bus driver for the Lee County Public School System in order to attend the Supreme Session of the White Shrine in Des Moines, Iowa, on April 30 through May 4, 1979. 2/ The leave request was reviewed by the Director of Transportation and the Superintendent of Schools on April 23, 1979. The request was denied and Petitioner was so advised. (Respondent's Exhibit 3.) On or about April 26, 1979, Petitioner called in sick and, thereafter, presented an excuse from her doctor, G. Thomas Hinkle, M.D., which contained a diagnosis with physician's notes to the effect that the Respondent should be excused from work for one week based on her diagnosed diarrhetic condition. (Petitioner's Exhibit 2.) On May 1, 1979, Assistant Superintendent Cecil A. Waldron telephoned the Veteran's Memorial Auditorium in Des Moines, Iowa, at approximately 3:15 p.m. and requested that Petitioner return his call in Fort Myers. Petitioner did so and it was this telephone conversation which confirmed Petitioner's presence at the White Shrine Convention in Iowa. As a result thereof, Petitioner was discharged for being absent without leave for "feigning sickness after she had been specifically warned in advance". During her employment with Respondent, Petitioner has always received satisfactory or above satisfactory evaluation ratings. (Petitioner's Exhibit 1.) Lorraine McGlohon, Respondent's supervisor, has evaluated Petitioner's performance since the outset of her employment with the School Board. Ms. McGlohon dispatched Anna Rich (another driver) to Petitioner's home to pick up the doctor's excuse on April 26, 1979. Thomas G. Lane, Respondent's Transportation Director, testified that there is no policy which permits drivers to operate school buses while they are taking medication. Director Lane further testified that bus drivers are not permitted to stop loaded buses to relieve themselves. Witnesses Erma and James Huntley testified respecting the Respondent's physical condition during the period leading up to the Shrine Convention in Des Moines. The Huntleys testified that they were concerned about Petitioner's condition to the point where they felt that she should not attend the convention. The Huntleys testified that Petitioner was the outgoing High Priestess, which is synonymous to the "President" of the White Shrine and, as such, was automatically authorized to attend and represent the local chapter at the convention. Helen Bartholomew attended the Shrine Convention along with the Petitioner and testified that they left on Saturday, April 28, 1979. According to Ms. Bartholomew, the local chapter members who attended the conference drove to Tampa on Saturday, April 28, 1979, and flew from Tampa to Des Moines, Iowa, the following day. Ms. Bartholomew testified that Respondent showed effects of the diarrhetic condition when she attended the various meetings and frequently had to absent herself from sessions during the convention. She testified that Petitioner did not appear "peppy" during the convention, did not engage in any hilarity nor drink alcoholic beverages during any of the sessions. She testified that Petitioner did not attend numerous banquets. Petitioner testified on her own behalf and indicated that she initially filed her application for personal leave during early January of 1979. She further testified that she later filed another leave request during mid-April, 1979, and was later told of the Board's denial during mid-April. At that juncture, Petitioner gave her banquet tickets to other members that were attending the convention. Petitioner felt despondent when she was informed that her leave request had been denied. Petitioner, during this period, was dizzy, light-headed and often took medication for diarrhea. She testified that Anna Rich, another bus driver, was dispatched to her house to pick up the doctor's authorization requesting that she be confined for one week due to the diarrhea. Petitioner also testified that she frequently needed to relieve herself during this period and that it was impossible for her to have driven the school bus based on outstanding policies issued by the Board to the effect that bus drivers should not stop their buses to relieve themselves when students were on the bus. In this regard, Dr. Hinkle, by letter dated September 24, 1979, related Petitioner's diagnosed diarrhetic condition. Dr. Hinkle stated that Petitioner's working diagnosis was that of "spastic colitis". Dr. Hinkle stated that the diarrhea actually began approximately three weeks prior to Petitioner visiting his office, or about April 26, 1979, and that the condition persisted through early June, 1979. Dr. Hinkle expressed his feeling that "during her period of having diarrhea, she was unable to drive the school bus". (Petitioner's Exhibit 3.) Dr. Hinkle's written diagnosis is corroborative of Petitioner's sworn and credible testimony. Virginia Nestor, also an employee of the Transportation Department in Lee County, was Petitioner's immediate supervisor when the subject incident occurred. Ms. Nestor testified that Petitioner phoned her on the evening of April 25, 1979, and advised that she had either a kidney or bladder infection which necessitated her visiting a doctor the following day. Ms. Nestor gave her approval and indicated that she would pass the leave request on to Ms. McGlohon. When Ms. McGlohon received Petitioner's sick leave request, she dispatched Anna Rich to Petitioner's residence at 1:30 p.m. on April 26, 1979. Ms. McGlohon considered the leave request suspicious inasmuch as Petitioner had advised her that she would be attending the Shrine Conference in Iowa during April, 1979. Ms. McGlohon received Petitioner's leave request during January, 1979, but either lost or misplaced it. Ms. McGlohon advised Petitioner when the second request was submitted that it was doubtful that the leave would be granted due to the shortage of drivers and the "double runs" that the available drivers were making. Ms. McGlohon related the fact that the "double runs" result in students arriving late for school. Likewise, the affected students also return home later than usual. Ms. McGlohon testified that when Petitioner's leave request was denied on April 17, 1979, a meeting was held based on a request by Petitioner's husband, an AFSCME representative and Petitioner. Ms. McGlohon testified that Petitioner renewed her leave request to attend the convention, which request was again denied. Although the facts surrounding Petitioner's attendance at the Shrine Convention in Des Moines, Iowa, appear suspicious, it is uncontroverted that Petitioner suffered from a diarrhetic condition during the period in which the convention was held. However, suspicion is no substitute for proof. Without question, Petitioner attended the convention in Iowa. Nevertheless, it is also clear that had she been in Fort Myers, she could not have fulfilled her duties as a bus driver based on the diagnosis, treatment and convalescence prescribed by her physician, Dr. G. Thomas Hinkle. For this reason, the undersigned is forced to conclude that Petitioner's sick leave request should have been honored by the Respondent in view of its outstanding policies condemning the practice of bus drivers reporting for work in a condition which hampers their ability to perform as required. Based thereon, I shall recommend that the Petitioner's termination be rescinded and that she be reinstated with back pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner, Sandra J. Carter, be reinstated to her former position with back pay from the period in which she was terminated through the date that she is offered reinstatement to her former or substantially equivalent position. RECOMMENDED this 8th day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
