Findings Of Fact On August 19, 1986, Petitioner was licensed as a chiropractor in the State of Florida and was issued license number CH0005434. When Petitioner's chiropractic practice subsequently became insolvent, he considered other possibilities for employment whereby he could use his skills and yet occupy a salaried position. One of the possibilities he considered was becoming a rehabilitation service provider. He contacted the Division of Workers' Compensation of the Florida Department of Labor and Employment Security and discussed with Paul Lincolnhol the requirements for such employment. Lincolnhol specifically told Petitioner, and Petitioner fully understood, that Petitioner could not be licensed as a chiropractor since Section 440.49(1)(b)4.c, Florida Statutes, specifically prohibited licensed chiropractors from being employed as rehabilitation service providers. On November 15, 1990, Petitioner personally appeared at the office of the Board of Chiropractic. He advised an employee as to what he wanted and was told to put his request in writing. On a blank sheet of paper Petitioner wrote the following letter: On this day of 11/15/90, I Philip Whitebook am relinquishing my Florida State license #CH 000 5434 to practice Chiropractic. I am asking you to take back this license and revoke all privelages [sic] associated with it. Petitioner signed that letter and gave it to a Board employee. That employee, pursuant to Petitioner's further request, prepared a letter directed to Paul Lincolnhol. That letter contained a copy of Petitioner's license which reflected an expiration date of December 31, 1991. The letter read as follows: This will advise that Dr. Philip Whitebook (CH 0005434) has voluntarily relinquished his Florida State Chiropractic license effective on this day of November 15, 1990. Petitioner was provided with a copy of the letter to Lincolnhol. By letter dated January 25, 1991, Petitioner was approved by the Division of Workers' Compensation, Florida Department of Labor and Employment Security, as a rehabilitation service provider and was assigned provider number XI0003924. In July of 1992, Petitioner renewed his rehabilitation service provider license which extended the expiration date of that license until June 30, 1994. At some point, the information in the computer of the Florida Department of Professional Regulation, now known as the Department of Business and Professional Regulation, was changed to reflect that Petitioner's license had been placed in a category called "involuntary inactive." On April 9, 1992, the Board sent a notice to Petitioner at his last known address informing him that his chiropractic license had not been renewed as of December 31, 1991, and had therefore automatically expired. That notice further advised Petitioner that if he did not complete the steps necessary to reinstate his license by June 30, 1992, his Florida chiropractic license would become null and void. Petitioner did not receive that letter since the address shown in the Board's records was no longer Petitioner's current address. In October of 1992, a friend of Petitioner who was also a chiropractor, moved to Florida. Petitioner and his friend decided that they would open a chiropractic practice together. On November 7, 1992, Petitioner contacted the Board requesting that his "inactive" license be "reinstated." That was the first contact Petitioner had with the Board after November 15, 1990. By letter dated January 20, 1993, the Board advised Petitioner that his license could not be reinstated since it was null and void by operation of law, pursuant to Section 460.407, Florida Statutes. That letter further advised Petitioner that his recourse was to reapply for licensure and pass the examination. By letter dated February 3, 1993, Petitioner wrote to the Division of Workers' Compensation advising that he was no longer employed as a rehabilitation service provider and was attempting to reactivate his license to practice chiropractic. Although the letter does not so indicate, Petitioner testified that he enclosed his rehabilitation service provider license with the letter, thereby returning his license to the Department of Labor and Employment Security at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to have his chiropractic license reinstated. DONE and ENTERED this 23rd day of May 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 23rd day of May 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6556 Respondent's proposed findings of fact numbered 1-5 and 7-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Philip B. Whitebook, D.C. Post Office Box 15314 Plantation, Florida 33318-5314 Allen R. Grossman, Esquire Assistant Attorney General Office of Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Department of Business and Professional Regulation Board of Chiropractic Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0752 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0752
The Issue Whether Respondent discriminated against Petitioner on the basis of physical handicap.
Findings Of Fact Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999. The Notice of Action/Change issued on February 18, 1999, stated: Employee was placed at maximum medical improvement with a 6% permanent impairment rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement: [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems. Brettell did not establish that she had a disability or a handicap. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer. Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of December, 2000. COPIES FURNISHED: Joyce Brettell 3743-4 Silver Lace Lane Boynton Beach, Florida 33436 Lynn G. Hawkins, Esquire Fitzgerald, Hawkins, Mayans & Cook, P.A. 515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Dana A. Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue The issue is whether The Unlimited Path, Inc. (“The Unlimited Path”) committed an unlawful employment practice against Constance K. Gatewood by denying her a reasonable accommodation and/or by demoting her from her position as Program Director at Jackson Correctional Institution.
Findings Of Fact The Parties The Unlimited Path contracts with the Florida Department of Corrections (“DOC”) to provide residential substance abuse counseling and re-entry services to inmates on prison grounds. The Unlimited Path has been operating since 1994 when it had 30 to 50 employees. Today, The Unlimited Path has 280 employees and operates at 20 to 24 institutions within Florida. DOC is The Unlimited Path’s primary source of revenue. If The Unlimited Path is not satisfying its contractual obligations, then DOC can terminate the contract. Therefore, it is imperative that The Unlimited Path satisfy its contractual obligations. In order to ensure that The Unlimited Path is satisfying those obligations, DOC and the Department of Children and Families (“DCF”) conduct periodic reviews of The Unlimited Path’s substance abuse programs. The contract between DOC and The Unlimited Path is comprehensive. For example, one provision requires that The Unlimited Path comply with the Americans with Disabilities Act (“the ADA”). Another provision empowers DOC to prohibit The Unlimited Path from employing a particular person at a DOC facility. Bertrand Randolph is the President of The Unlimited Path and performs all of the functions typically associated with a chief executive officer of a corporation. Mr. Randolph’s wife, Sheila Randolph, is the Executive Director of The Unlimited Path, and her duties include overseeing the operations and policies of the entire corporation. Ms. Randolph also writes The Unlimited Path’s bids. Ms. Gatewood has worked in prison-based substance abuse treatment programs since 2005. She is a master’s level certified addiction professional or a “CAP”. As a CAP, Ms. Gatewood is qualified to operate a substance abuse program. The Unlimited Path hired Ms. Gatewood on September 20, 2011, to work as a clinical supervisor at the Walton Correctional Institution (“Walton CI”). One piece of documentation associated with Ms. Gatewood’s hiring asked her to disclose whether she suffers from various medical conditions such as epilepsy, diabetes, or heart disease. With regard to a category on that document entitled “other,” Ms. Gatewood noted that she experiences “[a]llergies to certain foods, chemicals, perfumes, other odors plus dyes.” However, she responded negatively to a question asking if she had ever “received a disability rating or had one assigned . . . by an insurance company or state/federal agency.” On an “Emergency Contact Information Sheet,” Ms. Gatewood disclosed that she is allergic to several foods and substances such as aspirin, sulfides, chemicals, perfumes, colognes, seafood, pork, strawberries, nuts, chocolate, red dye, and yellow dye. Ms. Gatewood also noted on the aforementioned form that she has asthma and is sensitive to extreme hot or cold conditions. However, the disclosures described above did not present a complete picture regarding the severity of Ms. Gatewood’s allergies. Specifically, those disclosures did not indicate that Ms. Gatewood’s allergies could be life- threatening. A letter dated October 7, 2003, from Dr. Mark H. Kalenian of Alabama Asthma & Allergy, P.C. presented a comprehensive description of Ms. Gatewood’s allergies and described how they could be life-threatening: The above referenced patient is a 52 year old black female initially seen on 9/13/2001 and last seen on 4/1/2003. Her diagnoses include allergic rhinitis, asthma, dermographic Urticaria, Urticaria/angioedema, and multiple drug allergies. She breaks out in hives and can get facial swelling when ingesting MSG, scupper dines, vanilla ice cream, red #40 and yellow #5 dyes, shellfish, and Advil-related anti-inflammatory drugs. Her main problems that may affect her work are smoke, chemicals and/or perfumes which trigger sinus allergy type symptoms, lip swelling, dizziness, shortness of breath, and anaphylaxis (a potentially life- threatening reaction). These potential exposures to smoke, cologne, perfume, scents or chemicals, extreme hot/cold air, polluted air at work whether in the air or on co-workers could potentially trigger a severe allergic, asthmatic or anaphylactic reaction, which could send her to the emergency room, close off her airway and drop her blood pressure and be potentially life threatening. She should work in a clean air environment, away from co-workers who smoke or wear scented lotions or perfumes, away from polluted air and away from extremes of hot or cold. Avoidance is the best treatment for her, although she needs to continue on all asthma and allergy medications. Please consider implementing a policy of no perfume/cologne or strong scents worn on trainees, and people should smoke outside. As discussed in more detail below, Ms. Gatewood did not share the above-referenced letter with The Unlimited Path until April of 2015.2/ Ms. Gatewood’s Tenure at The Unlimited Path Prior to July 2015 During her tenure with The Unlimited Path, Ms. Gatewood has worked as the Program Director of substance abuse rehabilitation programs at three different DOC facilities: Lowell CI, Jackson CI, and the Northwest Florida Regional Annex. At The Unlimited Path, a program director is responsible for all aspects of a treatment program at a DOC facility. Ms. Gatewood’s allergies became well-known to those who worked around her. Any sort of strong scent presented a problem. For example, Ms. Gatewood’s co-workers could not heat fish in a microwave because of the resulting aroma, and they could not use hand soap. There is no dispute that The Unlimited Path’s management (prior to November of 2014) properly addressed any complaints made by Ms. Gatewood. According to Ms. Randolph, “any time there was a concern, we would address it with the employee or the site by holding a staff [meeting], requesting that people refrain from heavily scented products. I mean, we – we even allowed for there to be some cleaning schedule changes at sites to accommodate her allergies. So we tried very hard to respect the fact that she was sensitive.” The Unlimited Path also allowed Ms. Gatewood to set the standard for soap in the bathrooms. Nevertheless, Ms. Gatewood’s allergies were an issue throughout her tenure at The Unlimited Path. As explained below, Ms. Gatewood cites three instances in which The Unlimited Path allegedly ignored requests from her for a reasonable accommodation within the meaning of the ADA. In other words, Ms. Gatewood alleges that The Unlimited Path began ignoring her requests for a reasonable accommodation in November of 2014. The Unlimited Path began operating a substance abuse rehabilitation program at Jackson CI in January of 2014, with Ms. Gatewood as the Program Director. In approximately November of 2014, counselors under Ms. Gatewood’s supervision were wearing scented products, and the aromas from those scented products were being transferred to documents that Ms. Gatewood had to review in her capacity as Program Director. As a result, Ms. Gatewood experienced allergic reactions and began leaving documents in filing cabinets overnight in order for the scent to dissipate. On November 5, 2014, Ms. Gatewood addressed the following e-mail to Sheila Randolph: This message is to seek advice regarding employees that continue to wear scented products in the workplace which is creating complications because the paperwork is extremely saturated with perfume/cologne/aftershave/lotion scents so strong that I am experiencing allergic reactions signing the paperwork. I have addressed this issue in staff meeting[s], however, it seems not to matter with certain staff. Ms. Russell’s entire caseload charts were so strongly scented today, I asked Ms. Dandridge to place them in the file cabinet because my system could not tolerate the smell nor could I continue signing off on the individual sessions. I became very ill and had to go outside to get fresh air in order to breathe. Also, I know you want me to provide leadership training to Mr. Bell, however, the scented aftershave and hand product he wears makes it extremely difficult for me to interact in close proximity with him, and sign his paperwork. Today, I mentioned to him that I was experiencing an allergic reaction and my eyes were stinging so badly I could not sign his chart. Later I overhead him say “if someone is that sensitive this is not the environment to work in.” At this point, I am unable to perform the duties of my job due to these strong scents that I am affected by smelling and touch. There is a DOC policy that addresses strong scents in the workplace. I don’t want the closed charts to arrive in Tallahassee smelling like a perfume factory, and lastly these scents are very attractive to the inmates. On April 9, 2015, Ms. Gatewood addressed the following e-mail to her immediate supervisor, Amie Bishop: At your earliest convenience I need to speak with you regarding two issues that involve Counselor Karlicia Rogers. Scented products in the workplace that has been address[ed] in the past. She is now wearing heavily scented hand products when completing documentation. Documentation deficiencies regarding three charts that were not countersigned when the client was enrolled into the program, and correcting my documentation in the chart. Later that day, Ms. Gatewood transmitted another e-mail to Ms. Bishop and copied Sheila Randolph. Within the e-mail, Ms. Gatewood expressed an issue regarding Mr. Bell. However, she also referred to the ADA: Yesterday, after Staff Meeting, I considered Mr. Bell’s behavior inappropriate. In front of staff members, he made a comment regarding Ms. Chavers who was not present in the room at the time. He said, “If you are that sensitive you don’t need to be working here.” This was regarding an incident earlier during staff meeting when Ms. Rogers reported information she overheard from Ms. Chavers’ group and (Ms. Rogers) said she wanted clarification. Ms. Chavers thought Ms. Rogers was targeting her and told her so during the meeting. Ms. Rogers explained that she was not targeting her, and after numerous attempts to convince her she was not being targeted, Ms. Chavers excused herself and left the meeting. It was [about] time to go, I went to look for Ms. Chavers, and did not feel the need to keep Mr. Bell overtime to address his behavior. However, this morning, I advised Mr. Bell that I overheard the remark and wanted to address it with him. I mentioned that in the past I overheard him make the same remark about me when he thought I was out of the room (re: scented products in the workplace, and allergic effect it causes me). I further mentioned that I was surprise[d] he would commit the very same act after having been talked to by the Corporate Office. He remembered the incident stating Ms. Clark had advised him not to wear scented products in the workplace, however, she agreed with him regarding his opinion that if I was that sensitive, I did not need to be working here. He further stated that she did not know that I was still upset by the incident, and he began to apologize profusely. I emphasized to him that I was not still upset about that incident. However, my concern is the comment is totally inappropriate in the workplace because of the following reasons: (1) the forum in which he made the comment. The person he was talking about was not present, (2) the possibility of influencing staff members present to feel the same way he does which creates tension in the workplace, (3) in my situation, it is essential to recognize the Americans with Disabilities Act, (4) re: Ms. Chavers it was inappropriate for him to say where she can work, and (5) he continues to make this comment in total disregard of the effect. Hopefully, Mr. Bell will not continue this behavior, however, I do want to keep you in the loop. (emphasis added). Ms. Randolph responded to Ms. Gatewood via e-mail on April 9, 2015, by stating that, This is the first time I’ve heard you make mention of ADA for your condition. We have never gotten any medical documentation from you regarding special accommodations for your sensitivities and yet, we have continued to be supportive of your allergies and the needs you have regarding scents and strong odors. If you are stating that you have a condition covered under the ADA, we need documentation in support of that so that we can explore our responsibilities in that regard further. Via an e-mail dated April 16, 2015, Ms. Gatewood responded to Ms. Randolph’s request by attaching a note dated April 15, 2015, from Dr. Kalenian recommending that Ms. Gatewood have a fragrance free environment due to asthma and chemical sensitivity. Ms. Gatewood also attached Dr. Kalenian’s October 7, 2003, letter that was quoted above in paragraph number 14. In addition, Ms. Gatewood reiterated in her April 16, 2015, e-mail that “the current source of issues for me is when counselors use heavily scented hand products when handling inmates’ charts that I am required to countersign as the Qualified Supervisor.” To the extent that Ms. Gatewood’s November 5, 2014, e-mail amounts to a request for a reasonable accommodation within the meaning of the ADA, her subsequent e-mail on April 9, 2015, indicates that The Unlimited Path addressed her concerns regarding Mr. Bell’s use of scented aftershave. Moreover, The Unlimited Path conducted a staff meeting at some point between November 5, 2014, and December 25, 2014, at Jackson CI and trained the staff members on workplace grooming etiquette and being sensitive to co-workers’ allergies. To the extent that Ms. Gatewood’s April 9, 2015, e-mails amount to requests for a reasonable accommodation within the meaning of the ADA, The Unlimited Path mandated in May of 2015, that female staff members at Jackson CI no longer wear scented lotions. In addition, The Unlimited Path prohibited liquid soap in the bathroom at Jackson CI. To the extent that any of the e-mails discussed above amount to requests for a reasonable accommodation within the meaning of the ADA, the greater weight of the evidence demonstrates that The Unlimited Path took appropriate actions to satisfy those requests. Aside from the issues regarding her allergies, Ms. Gatewood’s tenure at The Unlimited Path has been marked by difficulties with DOC. For example, Ms. Gatewood did not have a good working relationship with the assistant warden of programs at Lowell CI when she was the Program Director there. As a result, Ms. Randolph encountered resistance when she sought permission from DOC to transfer Ms. Gatewood from Lowell CI to Jackson CI. Margaret Agerton, the Assistant Bureau Chief in DOC’s Bureau of Programs, felt as if The Unlimited Path was transferring a problem from one place to another. Nevertheless, Ms. Agerton approved the transfer with the caveat that this would be the last one. Events Leading to Ms. Gatewood’s Demotion On June 2, 2015, Ms. Gatewood requested leave from Thursday, July 16, 2015, through Friday, July 24, 2015, and her request was approved the next day. Because DCF is responsible for licensing and regulating substance abuse and mental health facilities throughout Florida, Michael Van Bebber of DCF arrived on July 23, 2015, at Jackson CI in order to conduct an audit. The Unlimited Path had received advance notice approximately two weeks beforehand. At the time of the audit, Jackson CI was treating 68 inmates. Even though Mr. Van Bebber considers The Unlimited Path to be one of the highest performing substance abuse providers that he reviews, he was disturbed by the state of the treatment program at Jackson CI. Three counselors employed by The Unlimited Path at Jackson CI had resigned within the previous week, and there were not enough counselors for the 68 people receiving treatment. In addition, Mr. Van Bebber considered the treatment facility to be too small for the number of people in the program. In his opinion, the facility was overcrowded, and the overcrowding caused the inmates to be extremely agitated. Mr. Van Bebber felt unsafe and locked himself in an on-site office. With regard to the overall functioning of the program at Jackson CI, Mr. Van Bebber concluded that The Unlimited Path was not performing at the level he would expect from an established provider of residential treatment programs. In fact, The Unlimited Path almost got a warning that could have resulted in the loss of its license at Jackson CI. Because Mr. Van Bebber considered DOC to be equally responsible for the problems at Jackson CI, the warning was not issued.3/ At the time of the audit, Michael Dozier worked for The Unlimited Path, and he substituted as the Program Director at Jackson CI during Ms. Gatewood’s vacation. Mr. Dozier has over 25 years of experience with prison residential treatment communities. He is recognized as an authority on residential treatment programs/communities. Upon arriving at Jackson CI, Mr. Dozier spoke to The Unlimited Path’s staff members and estimated that 50 percent of those to whom he spoke were looking for another job. As Mr. Dozier examined the physical area housing the substance abuse treatment program, he noticed that the facility was unclean and that many of the inmates were disheveled in appearance. This indicated to Mr. Dozier that there was a lack of structure and accountability. On July 23, 2015, Mr. Dozier wrote a memo to the “Executive Leadership” of The Unlimited Path recommending the “immediate removal” of Ms. Gatewood as the Program Director of Jackson CI: First, let me start by saying I have spent the past week evaluating the strengths and weaknesses of our Jackson CI RTC with hopes of identifying the direct cause of high staff turnover, staff resignations without notice, high staff dissatisfaction, and high levels of inmate frustration. During my review, I was very discouraged by what I found. The program space was very dirty with trash cans overflowing, negative graffiti on the walls, chairs disorganized in group space, and counseling offices discombobulated. I also noticed heavy layers of dust and spider webs in the windows [along with] hanging poster paper with inappropriate writing on them. As I focused my attention on the program, I quickly realized that there was no structure in the program. There appeared to be no accountability when it came to community expectations. [R]esidents were walking around with their shirts out, failing to wear their ID, using abusive language and consistently giv[ing] the staff negative feedback when being directed. After speaking to several structure members, I received the following feedback: the last structure meeting was held over three months ago, staff is not assigned to departments, there are no department meetings, no visual display of assigned structure positions and no systems for behavior management/behavior shaping. It was very disappointing to witness the disarray in Morning Meeting and Wrap-up. [T]hose meetings had no structure or desired outcome and residents expressed no trust of the environment. It was clear that staff had been receiving little to no direction from the program director when it came to managing the community and creating program expectations. During my interviews with staff, it was apparent that the director spent most of the time being punitive towards staff focusing on issues such as the way they wore their hair, what they [were] wearing, what lotion they were using and what deodorant they had on. It was also reported that the director would always make negative comments about the corporate office, negative comments about other employees, and a clear dissatisfaction with the contract manager. [S]taff also stated that if they complained about anything the director would defiantly retaliate against them using their request[s] for time off, [the] dress code, clinical files, or [by assigning that staff member to] the difficult clients that week. I was clearly concerned about the staff morale, lack of leadership and the poor client satisfaction I heard over the past four days. As you know, the program director has to be seen as the ultimate role model in the Therapeutic Community. Based on my findings, I am recommending the immediate removal of the Program Director. On July 27, 2015, The Unlimited Path removed Ms. Gatewood from her position as Program Director at Jackson CI and reassigned her to a counselor position at the Northwest Florida Regional Annex. A memorandum signed by May-Li Clark, Ms. Gatewood’s immediate supervisor at the time, explained why Ms. Gatewood was demoted: During the dates of 7/21/15 – 7/23/15, while Mr. Dozier, State Director, was onsite at Jackson CI’s RTC, several issues were noted that clearly reflect lack of leadership within the program. The following issues were noted: No structure within the program; last structure meeting was held over three (3) months ago, no staff assigned to the departments within the community; department meetings with the community were not being held, no visual display of assigned structure position; and no system for behavior management/behavior shaping within the program. Morning Meetings and Wrap-Up Meetings were unorganized with no desired outcome. There was no accountability in regards to community expectations as the inmate/clients were not in Class A uniform, did not have ID’s, were allowed to use profane language and did not follow staff directives. It was apparent that the inmate/clients were experiencing a high level of frustration. Additionally, the inmate/clients expressed no trust within the treatment environment. The memorandum also held Ms. Gatewood responsible for a high amount of turnover among counselors at Jackson CI: Between the dates of 7/17/15 – 7/22/15, two staff members quit without notice and one staff member was escorted off the compound by Jackson CI Administration. In addition to the immediate staff turnover concerns, it has been noted that the program at Jackson CI has experienced a high level of staff turnover since The Unlimited Path took over operations of the program. Issues that were noted which have been the main contributing factors to staff turnover include: 1) program space (staff work space) was unsanitary with trashcans overflowing, layers of dust and spider webs in the windows, disorganization of program and office space, negative graffiti on the walls and hanging poster paper with inappropriate writing on them; (2) staff receiving little to no direction from the program director regarding program structure, creating and managing program expectations and minimal training regarding clinical file documentation; and 3) fear of retaliation when speaking of concerns or seeking assistance. Ms. Gatewood signed the memorandum but noted that she did not agree with its contents and would challenge the decision.4/ Since the end of July 2015, Ms. Gatewood has been working as a Counselor at the Northwest Florida Regional Annex. As a Counselor, Ms. Gatewood does not have to handle the paperwork of other counselors. The greater weight of the evidence does not demonstrate that Ms. Gatewood’s demotion was retaliation for her repeated complaints about co-workers being insensitive about her allergies. In other words, The Unlimited Path had valid reasons for demoting Ms. Gatewood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Constance K. Gatewood’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of June, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 22nd day of June, 2017.
The Issue Whether the Respondent (the Agency) may assess costs against the Employer, who is denominated the Petitioner in the case, for rehabilitative temporary total disability benefits for an employee who was injured on the job, returned to work for approximately three years, and then was discharged for cause unrelated to his injury?
Findings Of Fact James Rutan (Rutan) was hired by Piedmont Airlines of Jacksonville on June 4, 1985. The employer changed its name to U.S. Airways (US Air) in April 1997. Rutan’s position was a fleet service employee. In this capacity, his duties were varied, but among his duties were loading and unloading baggage and freight from aircraft. On September 25, 1993, Rutan was loading baggage, picked up a heavy bag, pulled it across his chest, and injured his shoulder. He went first to the emergency room, then to Dr. Depadua, and finally to Dr. Fady Bahri, who determined that Rutan had torn his rotator cuff. Dr. Bahri operated on Rutan’s shoulder in November 1993, and Rutan returned to light duty with US Air in January 1994. Rutan continued in light-duty status until March 15, 1994. Two contradictory documents were introduced from Dr. Bahri’s office regarding Rutan’s status as of March 15, 1994. One document, sent to the workman’s’ compensation insurer, indicates that Dr. Bahri determined Rutan had reached Maximum Medical Improvement (MMI) with a 12 percent impairment rating and physical restrictions of light work, lifting a maximum of 20 pounds, lifting and carry objects weighing up to ten pounds, and no repetitive overhead activities. However, the other document, attached to Dr. Bahri’s deposition, from the US Air file indicates that Rutan was cleared to return to “full duty.” The doctor was unable to explain in his deposition the apparent contradiction in the two determinations. Rutan testified at hearing concerning his injury and its effect upon his work. Rutan loaded and unloaded baggage and freight from aircraft, and that to do so, he crawled into the cargo bay of the aircraft several times each day and either stacked bags or boxes, or threw bags or boxes to the person stacking them. This caused him pain, and he took quantities of over-the-counter and prescription pain relievers to cope with the pain and continue working. He did not complain to his supervisor(s) about discomfort from performing his duties or seek an accommodation for his handicap. Rutan's supervisor, Lynn Moore, testified regarding Rutan’s job performance. She was his supervisor for approximately two months. She observed his work during that time, and Rutan performed full duty, lifting everything he needed to lift. During the period Moore was Rutan’s supervisor, Rutan did not make any complaints of pain or complain of an inability to do the work. Rutan did not make any requests for transfers, or make any requests for accommodation for a handicap pursuant to the Americans with Disabilities Act. In the first week of April 1997, US Air terminated Rutan for cause. Although the details were not discussed, the discharge was not related to his previously injury or its impact upon his work. Ms. Moore was familiar with the records of Rutan’s employment, and these records reflected Rutan missed a total of 90 days of work due to the injury and surgery. The records further reflect he returned to full duty not later than October 16, 1996, and worked in that capacity until his discharge. Rutan worked for approximately six months following October 16, 1996, without requesting an accommodation or other relief. Ms. Moore testified regarding the positions available at US Air for persons with Rutan’s experience. There were positions available that would have accommodated Rutan’s limitations.2/ Subsequent to his discharge, Rutan had a second surgery on his shoulder on May 11, 1998, that related back to his original injury. Dr. Bahri made another determination of MMI following this surgery on October 1, 1998. Dr. Bahri again determined that there was a 12 percent impairment, but stated that Rutan was able to do medium level work restricted to occasional lifting 21-50 pounds, frequent lifting of 11-20 pounds, and constant lifting of ten pounds with no overhead activities with the right arm or shoulder. These limitations are less restrictive, and permit Rutan to lift more than the limitations originally imposed after the 1993 surgery. At the time of the second surgery, Rutan was a full time student pursuing the profession for which he was "retrained." Subsequent to his second surgery and approximately one year after his discharge for cause, Rutan filed a DWC-23 on April 14, 1998 seeking rehabilitation temporary total disability benefits pursuant to Chapter 440, Florida Statutes. The Agency interviewed Rutan, and was aware of his work history, injury, and discharge for cause unrelated to his injury. Because he had been terminated before his presented his application, and was already approved for tuition benefits and enrolled in college, Rutan’s application was handled differently than a person who was employed by an employer. The employer was not required to sign the DWC-23, and Rutan was sent directly to Mark W. Toigo for vocational evaluation. Mr. Toigo’s evaluation of Rutan’s potential for finding employment without retraining was consistent with the standards for such evaluations and the Agency’s rules. Tiogo concluded that Rutan needed to be retrained. His conclusion was based upon two primary determinations: his determination Rutan physically could not perform the work required to work in his old job which was based upon the documentation provided to the workman's compensation insurer, and his determination that Rutan could not make the amount of money he made in his old job without retraining. The first of these determinations is not supported by the facts presented at hearing. There is documentation that Rutan was returned to full duty, which implicitly is without restriction or limitation. If we assume that Rutan was not returned to full duty by Dr. Bahri after his first surgery, the facts reveal Rutan had performed the duties of his prior job under restrictions that were more stringent than those imposed after his second surgery without complaint or requests for accommodation. Mr. Tiogo did not consider the impact of Rutan’s termination for cause because the Agency’s position was Rutan could not physically perform the duties of his employment; therefore, the job was not and had never been suitable. Ms. Moore and Mr. Richard Hall testified that US Air had positions available in the same pay range as Rutan’s that did not require lifting of the type precluded by Dr. Bahri. Had Rutan not been discharged for cause and had he requested an accommodation due to his physical limitations, US Air would have been legally required to and able to accommodate his needs.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its Final Order dismissing the administrative complaint seeking reimbursement for rehabilitation temporary total disability benefits from the Employer/Petitioner. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 31st day of January, 2001.
The Issue The issue in this case is who is entitled to payment of remaining retirement benefits due to James E. Brandon, deceased.
Findings Of Fact James E. Brandon was employed by the Hillsborough County Parks and Recreation Department and was a participant in the Florida Retirement System (FRS). Mr. Brandon had a long standing relationship with Dennis A. Barga. In February 1995, James E. Brandon applied for FRS disability benefits due to a medical condition. On the application for disability benefits, James E. Brandon designated Dennis A. Barga as his primary beneficiary. The application for disability benefits was approved in June 1995, with an effective retirement date of March 1, 1995. James E. Brandon elected to receive benefits under "Option 2" of the FRS, which provides for a lifetime benefit to the covered employee. Option 2 also provides that, if the covered employee does not survive for the ten years following retirement, payment is made to a designated beneficiary for the remainder of the ten year period. James E. Brandon died on August 28, 1995, of the condition which resulted in his disability. James E. Brandon did not personally receive any of his disability benefits. By letter dated September 29, 1995, the Division notified Mr. Barga that he was entitled to receive the remaining benefit payments for the ten year period. At the end of September, the Division sent two checks to the home of James E. Brandon. One check covered the initial benefits period from March 1995 through August 1995. The second check was for the September 1995 benefit. The checks were not returned to the Division and apparently were cashed or deposited. On October 10, 1995, the Division was notified by William Brandon that his brother, James E. Brandon, had completed a form amending his designation of beneficiary and that the form had been filed with the Division. The Division searched its files and located a form, FRS M-10, which was apparently filed on July 25, 1995, by James E. Brandon, and which amends his prior designation to identify sequential beneficiaries. The amended beneficiaries, in order, are William W. Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens. The Brandons are family members of the deceased. Ms. Stevens is a long-time family friend and was also employed by the Hillsborough County Parks and Recreation Department. FRS Form M-10 is the form adopted by the Division for use by a non-retired FRS participant in designating a beneficiary. Form M-10 does not require execution before a notary public. FRS Form FST-12 is the form adopted by the Division for use by a retired participant in designating a beneficiary. Form FST-12 requires execution before a notary public. The amendment of the beneficiaries should have been executed on a Form FST-12. The Form M-10, which was filed on July 25, 1995, was provided to James E. Brandon by the human resources office of the Hillsborough County Parks and Recreation Department. The form was obtained by Victoria Weaver Stevens apparently at the request of the deceased. The filing of the improper form was through no fault of James E. Brandon. The Petitioner suggests that the signature on the Form M-10 is a forgery. There is no credible evidence to support the assertion. The evidence establishes that the deceased sometimes included his middle initial in his signature, and other times did not. The Petitioner suggests that during the last weeks of the deceased's life, he was overmedicated, was often unaware of his surroundings, and was likely manipulated into changing the designated beneficiaries. There is no credible evidence that James E. Brandon was mentally incapacitated and unable to understand the import of his decisions at the time the amendment was filed with the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order dismissing the Petition of Dennis A. Barga. DONE AND ORDERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 David T. Weisbrod, Esquire 601 North Franklin Street Tampa, Florida 33602 Stanley N. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Thomas Frost, Esquire 7901 Fourth Street North Suite 315 St. Petersburg, Florida 33702
Findings Of Fact In 1984, petitioner, Louise Blair, visited the Miami office of respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation (Division), for the purpose of seeking vocational rehabilitation (VR) services. Through the use of federal funds, the Division provides such services to eligible persons. Although Blair indicated she received various services in 1984 and 1985, Division records produced at hearing reflect she was not formally enrolled as a client until October, 1986. To be eligible for VR services, a person must (a) have a physical or mental disability, (b) show that the disability is a substantial handicap to employment, and (c) show that VR services would reasonably be expected to render that person fit to engage in a gainful occupation. Once a person is certified as eligible for VR services, an individual written rehabilitation program (IWRP) must be prepared by a counselor and approved by the Division. The IWRP identifies, among other things, the determination and achievement of a vocational goal. The IWRP must be reviewed annually, and it remains in effect until services are terminated or the plan is changed. Services may include counseling, medical treatment and grant funds for training in a marketable skill. Blair was classified as eligible for Division assistance due to both physical and mental disabilities. Her IWRP was reduced to writing on October 12, 1986. The plan called for business and clerical training at United Business Institute (UBI) in Miami from October, 1986 through May, 1987. Funds for the UBI tuition had already been obtained by Blair through a student grant and a federal loan program. Blair's long-term goal was to obtain a marketable skill (typing) which could then be used as an employment tool. The specific VR services to be rendered Blair were counseling by a Division counselor, eyeglasses for her failing eyesight, and payment for medication for gastric ulcers. She was also sent on one occasion to Jackson Memorial Hospital in Miami to be examined by an internist. As it turned out, Blair only stayed at UBI for about three weeks. She left because the school furnished inadequate instruction. After Blair complained to the State Department of Education, UBI gave her a full refund of her money. Blair had the money transferred to Barry College (Barry) in Miami where she enrolled as a student for one semester. She reenrolled at Barry for a second semester (spring of 1987) but was late in filling out her application for a student loan. Even though she did not obtain a loan, Blair remained at Barry for the semester without paying tuition. Barry now wants the money owed for tuition and will not allow Blair to re-enroll until it is paid. Blair accordingly requested that the Division pay for her tuition as a VR service. However, applicable federal regulations, which are binding on the Division, do not allow an IWRP to be altered after the fact or for the Division to pay for services after they are rendered. In other words, the Division cannot authorize payment for an educational service after the student has already enrolled at the college. Since Blair was enrolled in Barry before she requested a modification of her IWRP, the Division is prohibited from reimbursing Blair for her tuition. Besides needing prior authorization for a service, a client must also have a psychological evaluation performed to determine if the client would benefit from a college education. In Blair's case, an after-the-fact evaluation was made on May 4, 1988, presumably to assist the Division in countering Blair's claim. The results of the evaluation were not made a part of the record, and the counselor's testimony as to what it said is inadmissible hearsay. However, after meeting with Blair and reviewing her file, Blair's counselor made a recommendation that Blair would not benefit from a college education. At hearing Blair contended that she had a difficult time arranging an appointment to see a counselor and then having a meaningful session to develop an IWRP. This was probably attributable to the fact that her counselor was carrying a case load of 100 active clients at the time. In any event, an IWRP was prepared and signed on October 12, 1986, and was binding on the client. She also contended that she told the counselor that she was attending Barry University before her plan was prepared. Even if this was true, it was still necessary to obtain approval for tuition payment prior to enrolling at the college. Blair did not do this. Therefore, the agency properly denied her request.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for modification of her IWRP or approval for college tuition payments be denied. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988. COPIES FURNISHED: Ms. Louise Blair 652 Northwest 100th Street Miami, Florida 33150 E. Ellen Winslow, Esquire 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Steve Barron, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
The Issue The issue to be determined is whether the specifications for Request for Proposals number FDC RFP-17-108, “Community Release Center (CRC) in Orange County, Florida,” are contrary to the governing statutes, rules or policies of the Florida Department of Corrections (the Department or DOC).
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: Petitioner is a vendor that currently holds contracts with the Department to provide work-release beds and transitional work-release beds throughout the state of Florida and holds a contract providing these services in Orange County, Florida. Its Orange County facility is referred to in this proceeding as Orlando Bridges and qualifies as a community release center. Bridges is a vendor who would, potentially, bid on the request for proposal at issue in this case. Petitioner has standing to challenge the specifications of RFP-17-108, and there is no dispute that Petitioner timely filed its notice of intent to protest the specifications; timely filed a formal written protest; and timely filed the required protest bond. On August 11, 2016, the Department issued FDC RFP-17- 108, “Community Release Center (CRC) in Orange County, Florida.” A community release center is defined by Florida Administrative Code Rule 33-601.602(1)(n) as “a correctional or contracted facility that houses community custody inmates participating in a community release program.” The RFP seeks proposals from vendors to provide: A facility located in Orange County, Florida, with qualified staff to deliver a Community Release Center (CRC) for male inmates. Services will include operation of each facility, security, supervision, housing, care, meals, employability skills, licensed substance abuse outpatient and after care services, cognitive-behavioral interventions, parenting, family reunification, anger management, mentoring, budgeting, victim awareness and related transition services to enhance the inmate’s successful reintegration back into society. The Department intends to award one contract in Orange County for up to seventy-five (75) male beds. The number of awarded beds will be determined by the Department based on the Vendor’s response to this RFP. The Department reserves the right to increase or decrease the bed allocation based on the Department’s need, and the appropriation of funds. The contract currently held by Bridges for its Orlando Bridges facility, Contract #C2489, was executed in 2008, and has been renewed and extended a number of times. It is scheduled to expire December 31, 2016. Under the current contract, Bridges provides up to 54 work release beds and up to 84 substance-abuse treatment transition beds (transition beds). The Department currently pays, on average, $21 per day, per inmate, for work- release beds. It pays an average of $52 per day for transition beds. Orlando Bridges also holds other contracts with the Department: according to Petitioner, it has slightly under 400 inmates currently, with 134 beds under Contract #C2489; 100 beds under a probation diversion program; and the remainder under other work-release programs. The difference in cost between transition beds and work- release beds reflects the difference in services currently provided. For transition beds, inmates are placed at a facility, such as the Orlando Bridges campus, which operates as a modified therapeutic community. Depending on the terms of the governing contract, the facility can either be provided by the vendor, as is the case with Orlando Bridges, or can be a Department-owned facility operated by a private vendor. The inmates assigned to transition beds receive intensive therapeutic services, including education, substance-abuse treatment, vocational training, employment and re-entry assistance, depending on the individual inmate’s needs. The inmate focuses on treatment during this portion of the program. Once the treatment portion of the program is completed, inmates are transferred to work-release beds, where the goal is obtaining and maintaining work-release employment. Inmates receive some additional treatment while in work-release beds, but the focus is on employment. Orlando Bridges is a 15-acre campus that could house up to 400 inmates. It is not a secure facility: it does not have a secured perimeter and does not have armed guards. Under Contract #C2489, Orlando Bridges is assigned a “parent institution,” which is located in the same geographic area and provides oversight and limited classification services to Orlando Bridges. The contract also provides for the transportation of inmates in the event that medical care is needed, because medical services are not included within the scope of the contract. Contract #C2489 also delineates the process to be used should an inmate be terminated from the program or released from custody. Specifically, Contract #C2489 provides: Termination from the Work Release/Program Center All behavior problems, escapes, disciplinary problems, unusual incidents, special medical issues and requests for inmates to be removed from the program shall be reported to the OIC of the parent institution. The Department is responsible for terminating inmates from the Substance Abuse Transitional/Work Release (Re-entry) Program Center. An inmate may be terminated and returned to the physical custody of the Department from the Substance Abuse Transitional/Work Release Program Center when it has been determined that to do so is in the best interests of the Department, the Substance Abuse Transitional/Work Release (Re-entry) Program Center, and/or the inmate or for any other compelling reason related to public safety. Pursuant to this Contract and Department Policy, the Warden of the parent institution or other Department staff is authorized to approve an inmate’s termination from the Transitional Work Release/Program Center. If it becomes necessary to terminate an inmate from the program, Department staff or other law enforcement staff shall assume physical custody of the inmate and transport the inmate to an appropriate facility. . . . Release of Inmates from the Custody of the Department of Corrections All inmates placed by the Department into the Contractor’s Substance Abuse Transitional/Work Release (Re-entry) Center shall remain in the Substance Abuse Transitional/Work Release (Re-entry) Program Center program until their sentence of incarceration is completed, or until returned to the Department’s custody by reason of termination from the Substance Abuse Transitional/Work Release (Re-entry) Program Center program. (emphasis added). The Department currently has contracts for five facilities providing transition beds like those provided under Contract #C2489. The Department also has contracts that provide only for work-release beds, and has contracts of this type with Petitioner. For example, Turning Point in Broward County is a contract for 99 work-release beds and is a Bridges-owned facility. RFP-17-108 seeks proposals for work-release beds only, although 21 more than are currently provided through Contract #C2489. The Department is not seeking transition beds, with their more intensive treatment component, as a part of this RFP. As a result, should Bridges choose to bid on this RFP, it would provide services for 63 fewer beds than it provides under the current contract, at an intensity level that is higher than the current work-release beds and lower than the current transition beds. While the RFP seeks proposals for work-release beds as opposed to transition beds, there are some similarities between the RFP and the current contract because both deal with services provided at a community release center. For example, the RFP specifies that there will be a correctional institution that will be designated as a parent institution to provide oversight and limited classification services, and has many of the same provisions with respect to licensure, facilities, staffing and oversight. The RFP requires the vendor to provide job development, placement, and retention services, as did previously issued contracts providing for work-release beds. However, the RFP also requires bidders to provide readiness programs and services to address individual criminogenic needs of the inmate, such as development of independent living skills and economic self- sufficiency; mentoring; budgeting; anger management; cognitive- behavioral interventions; educational and literacy skills development; parenting; family reunification; life skills; victim awareness; and outpatient and aftercare substance-abuse services. Similar to Contract #C2489, there are provisions within the RFP that refer to inmates being “returned to the physical custody of the Department.” See, for example, sections 2.8.1 (Facility Intake) and 2.11.1.14 (Inmate Termination from the CRC). RFP-17-108 is an initial step in a change of focus for the Department when it comes to providing substance-abuse treatment and work-release services to inmates. The overall vision is identified in Joint Exhibit 3, a document entitled “Timing of Effective Intervention.” Joint Exhibit 3 is a document prepared by Maggie Agerton at the request of her supervisor, Abraham Uccello, to address how best to use the Department’s existing resources to provide the greatest amount of treatment to the most inmates. It is an internal document that has not been formalized. Mr. Uccello, who requested that the document be prepared, described Joint Exhibit 3 as a work product document and did not know what the final version would look like. Department staff testified that the Department is looking at a new approach to providing work-release and substance- abuse services, because as a result of inmate classifications based upon the nature of the offenses committed, only nine percent of the inmate population qualifies for placement in the community.1/ The Department has a budget of approximately $27 million devoted to contracted substance-abuse treatment. Of that $27 million, approximately $15,489,548 (57%) of the budget is currently allocated for 688 transition beds statewide. Work- release slots with related treatment represent $789,927 of the budget. The remainder of the budget ($10,933,333) is used to serve the needs of the remaining 91% of the inmate population. The Department’s concern is that more resources should be used to treat moderate to high-risk inmates, because best practices studies show that these inmates are the one that most need the services to reduce recidivism. The Department’s data indicates that approximately 62% of the inmate population have an identified need for substance-abuse treatment, and under the current model, a significant percentage of the inmates with an identified need is being untreated. In light of these concerns, the Department intends to move some, but not all, of its substance-abuse treatment “behind the fence” (i.e., in secured institutions) in order to reach a greater number of inmates. It also seeks to expand the number of work-release slots, with a “substance-abuse treatment overlay” for those expanded slots. As described in Joint Exhibit 3, the proposed approach is to provide as much intervention as possible while the inmate is housed in a secure facility; to require inmates mandated for substance-abuse treatment to receive it prior to being placed in work release; to use work release as a “privilege and incentive for hard work in core programming and readying oneself for release”; and to consider work release as the final transitional step between readiness and community transition. The primary focus of work release would be to obtain and maintain paid employment. Participants, however, would be given the opportunity to complete any domain programming that was not completed at the secure facility. To that end, Joint Exhibit 3 identified requirements from prior requests for proposals and added some additional requirements for the work-release beds they would be seeking. The working document provides: In previous solicitations, proposers were required to provide, at a minimum: A facility/site which provides housing in a clean, safe environment; Sufficient qualified staff to operate the facility and programs; Three (3) nutritious, balanced meals per day prepared on site and/or including preparation of sack lunches for inmates employed away from the CRC during scheduled meal times (if the meal cannot be consumed on site for these inmates); Job development, job placement and job retention services; Access to transportation as required by Department rules and regulations; Personal financial management instructions; and Licensed outpatient substance abuse treatment, intervention, and aftercare. In the current solicitation, the proposer must also provide readiness programs and services to address individual criminogenic needs of the participants. These services are intended to facilitate successful reintegration in the community upon completion of incarceration through development of independent living skills and economic self-sufficiency gained through meaningful employment. These include: Cognitive-behavioral interventions; Parenting; Family reunification; Anger management; Mentoring, budgeting; Victim awareness; Compass 100; and Related transition services and referrals. Readiness programming is based on individual needs and will be provided in instances where the participant did not receive the required level of service prior to placement at the CRC. The terms of the RFP are consistent with the approach outlined in Joint Exhibit 3. RFP-17-108 has no per diem rate specified that proposers are required to meet. The Department has left the cost open so that it can determine whether this approach is financially feasible. If a vendor believes that there are extra costs to run a facility as bid, the vendor can include those costs in the price it submits. If all bids come back too high, the Department will have to determine whether they can afford this approach. The stated intention of the Department is, as current contracts for transition beds expire over the course of the next four years, the contracts will be allowed to expire or will perhaps not be renewed. No existing contract is being terminated. The goal is to replace the 688 transition beds with expanded work- release beds in the community. While substance abuse would then, for the most part, be provided behind the fence, even if the strategy is characterized as “moving” these 688 beds, the move would affect approximately .6 percent of the Department’s current prison population. Like all state agencies, the ability for the Department to implement programs depends upon the Legislature’s willingness to fund them. Petitioner contends that the Department is not free to pull back transition beds and move substance abuse treatment and more intense therapy behind the fence, because of a proviso in the Department’s budget. To support this contention, they point to a section of the Department’s budget from the General Appropriations Act (GAA) for 2016, House Bill 5001, submitted as Joint Exhibit 17. The specific line item from which the current funding for substance abuse treatment is authorized is line item 633. Section four of the GAA for 2016 contains the following proviso: From the funds in Specific Appropriations 598A through 755, the Department of Corrections shall, before closing, substantially reducing the use of, or changing the purpose of any state correctional institution as defined in section 942.02, Florida Statutes, submit its proposal to the Governor’s Office of Policy and Budget, the chair of the Senate Appropriations Committee, and the chair of the House Appropriations Committee for review. Based upon this limitation, Petitioner contends that the Department’s issuance of the RFP signals its intention to close, substantially reduce the use of, or change the purpose of a state correctional institution, by substantially reducing and changing the purpose of the facility at Orlando Bridge. Notably, the proviso contains no mention of substance abuse treatment or transition beds. Mr. Uccello testified that, at the request of Kim Banks, the Department’s CFO, and Steven Fielder, DOC’s Chief of Staff, he made a presentation regarding the overall developmental plan for in-prison programs and treatment in a general meeting between the Office of Policy and Budget (OPB and House and Senate Appropriations staff. He understood that it was an informational meeting, and did not believe that approval of the proposal was required. There was no testimony to indicate that the proposal was presented to the chairs of the House and Senate Appropriations Committees. Petitioner’s President and CEO, Lori Constantino-Brown, state that this RFP, compared to Orlando Bridges’ current contract, would require changes to all of Bridges’ policies and operational procedures, would result in layoffs of her employees, and would limit the number of inmates served in a community setting. She also testified that there are additional costs needed to run the facility as proposed, and providing the services with the limited number of beds proposed, would not be cost- effective for any vendor. Ms. Constantino-Brown acknowledged that Bridges does not have a right to provide transition beds as they exist under the current contract, and that an award to a different bidder would be lawful. She also acknowledged that if Orlando Bridges closed on January 1, 2017, because its contract expired, that would also result in staff layoffs. The same result would occur should another vendor successfully bid on the RFP. Petitioner has not demonstrated that the specifications of the RFP are arbitrary and capricious. The specifications are consistent with the Department’s intended restructuring of substance-abuse treatment and work release opportunities for inmates. Whether or not the plan is ultimately successful, the thought process behind the specifications included in the RFP is to address legitimate concerns for providing the most treatment to the greatest number of inmates. Petitioner stated at hearing that it was not challenging the policy articulated in Joint Exhibit 3, but spent a significant amount of time trying to establish that the changed strategy would not be less costly. However, the Department staff candidly testified that at this point, it is not possible to determine whether there would be any savings, because they do not know what vendors would identify as a price until they get responses to the RFP. Petitioner has not demonstrated that the RFP is contrary to competition. While there was some testimony that the requirements of the RFP may be cost-prohibitive for Bridges to respond, there was no real evidence to indicate that it created an advantage for any vendor over others. While Petitioner claims it is not challenging the policy change itself, it points to no term in the RFP that it finds offensive. The challenge, instead, is to what is not included: transition beds like the ones Bridges provides now. It contends that this omission amounts to the closure, substantial change in services, or substantial reduction in services provided by a state correctional institution, and therefore violates the proviso limitation in the General Appropriations Act. No term or specification in the RFP closes a state correctional institution. No term or specification in the RFP substantially reduces the use of a state correctional institution. While there is some reduction in the number of beds provided for in the RFP, there is also a proviso allowing for an increase in the number of beds, depending on need and funding. Moreover, the beds included in Contract #C2489 do not represent all of the beds at Orlando Bridges. No term or specification in the RFP changes the purpose of any state correctional institution. The purpose of Orlando Bridges, under its current contract, is to provide readiness programs to assist inmates to prepare for re-entry in society. RFP-17-108 seeks proposals for readiness programs, albeit using a restructured program model. While the vehicle may be different, the purpose remains the same: preparing inmates for release with a goal of lower recidivism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections amend the RFP in a manner consistent with the stipulation of the parties in the Joint Pre-hearing Statement, i.e., by removing the second sentence of section 1.4 of the RFP, and by removing section 2.5.19 of the RFP. It is also recommended that the Department enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of November, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 23rd day of November, 2016.
The Issue Whether the Respondent's determination that the Petitioner is ineligible for Vocational Rehabilitation services is consistent with the adopted goals, criteria, standards, and policies of the Department.
Findings Of Fact The Petitioner initially applied for Vocational Rehabilitation services on July 11, 1983. The Petitioner was determined to be eligible for benefits and received assistance until July 17, 1984, when her file was closed at her request. The Petitioner requested the file closure because she was rehabilitated and was not currently in need of services. She was informed by the Respondent that the file could be reopened if services were needed in the future. In April of 1987, the Petitioner had surgery done on her left leg which changed the shape of her foot and created new problems surrounding her physical disability. On June 26, 1987, the Petitioner reapplied for Vocational Rehabilitation benefits. The surgery required the Petitioner to be out of work for six weeks without pay. Her employee medical insurance program did not adequately provide for the physical therapy she needed to adjust to the changes in her leg. New orthopedic inserts were needed for her shoes as the shape and size of her left foot were changed by the surgery. A new clutch apparatus was needed in her vehicle because the present clutch aggravated her foot and interfered with her recovery from the surgery. The Petitioner was also under emotional stress because she had been informed that amputation may be necessary if the recent operation is unsuccessful. Vocational Rehabilitation benefits were sought by the Petitioner to help her through the situation in which she was currently placed because of her physical handicap. During the reapplication process, the Petitioner was treated as a "new applicant" for computer purposes and as a "returning client requesting post- employment services" for processing purposes. The reason for the discrepancy was that the original file had been closed before the new computer was installed. The computer refused to accept the application as a request for post-employment services, so the Vocational Rehabilitation counselor treated the case as an initial application in order to obtain a client number. During the file review to determine if the Petitioner is eligible for services, the Vocational Rehabilitation counselor spoke with the Petitioner's supervisors at work. The purpose of the interview was to determine whether the Petitioner's physical disability prevents her from performing her job or places her job in jeopardy. There was a communication problem during the interviews between the supervisors and the Vocational Rehabilitation counselor. As a result of the misunderstandings which occurred, the application was rejected by the Respondent on November 12, 1987. The reason given for the determination that the Petitioner is ineligible for services was that the disability did not prevent the Petitioner from performing her job or maintaining employment. During the hearing, the evidence revealed that the Petitioner's disability did prevent her from performing her job as a Public Assistance Specialist II. The surgery and the physical therapy placed her employment with the Department of Health and Rehabilitative Services in jeopardy because she was unable to perform her job duties. The Petitioner was unable to work on her case load of clients. She was unable to complete home visits or work in the agency's outposts in the area hospitals. Other employees within her unit worked overtime in order to meet the duties the Petitioner was unable to fulfill. The expense of overtime payments to other workers made it impossible for the employer to continue with the arrangement over a long period of time. In addition, the extra work hours and heavier case loads negatively impacted on the unit's performance as a whole. The entire situation jeopardized the Petitioner's continued employment as a Public Assistance Specialist II. During the time period the Petitioner was recuperating from surgery, she was asked to return to the office as a switchboard operator. The purpose of the request was to help the Petitioner financially and to fill a temporary vacancy at the office. This temporary assist to the Petitioner was unsuccessful. The situation caused confusion with the clients, and the Petitioner's need to take time off for physical therapy sessions inconvenienced the office and interfered with office functions. The problems surrounding the permanent job and the temporary job were discussed with the Petitioner on different occasions by her supervisors. The supervisors did not consider these discussions to be "oral reprimands" as legally defined within the agency's personnel manual. The supervisors considered the discussions to be a preliminary attempt to resolve a personnel problem. Discussions of this nature precede oral reprimands and are not generally discussed with anyone other than the participants. Thus, when questioned by the Vocational Rehabilitation counselor about the Petitioner's job status, the supervisors' responses may have been convoluted due to the entire job situation. The Vocational Rehabilitation counselor's attempt to clarify her knowledge of the situation by inquiring about any disciplinary procedures was met with denial by the supervisors because they believed the discussions were confidential. When the Vocational Rehabilitation counselor and her supervisor sought information concerning the status of the Petitioner's employment from her supervisors misunderstandings continued to occur. The supervisors did not adequately explain the situation so that the Respondent would be able to make a just determination of the Petitioner's eligibility status. The Petitioner unsuccessfully pursued other avenues of possible assistance before she applied for benefits from the Respondent.
The Issue Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on January 26, 1998. There was nothing unclear about the Agency's notification letter. Petitioner has had an incident-free driving record with Big Bend Transit since her employment. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her." Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995. Petitioner quit smoking cigarettes approximately one year before formal hearing. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house." Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian." Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Jacqueline Smith's request for exemption from disqualification. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North Florida, Inc. Suite 200 8 West Jefferson Street Quincy, Florida 32351 John Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Suite 100A Tallahassee, Florida 32399 Gregory D. Venz, Agency Clerk Department of Children and Family Service Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
