Findings Of Fact Petitioner, District Mental Health Board No. 9, Inc., is the recipient of funds from the State of Florida under the Baker Act Program. Such funds are received pursuant to a contract between petitioner and respondent, Department of Health and Rehabilitative Services (HRS). Petitioner is also the recipient of grant funds from the federal government under the Community Mental Health Centers Amendment Act of 1975. After receiving such funds, petitioner contracted with South County Mental Health Center (SCMHC), Palm Beach County Comprehensive Community Mental Health Center (PBCCCMHC) and Indian River Community Mental Health Center to provide certain mental health services. As a result of an audit performed by respondent for fiscal years ending June 30, 1979, and June 30, 1980, respondent determined that $130,093 in costs incurred by SCMHC and PBCCCMHC should be disallowed on the ground the District and its subcontractors failed to maintain records capable of audit. More specifically, it contended that state and federal funds were comingled in a single operating account, and that the auditors could not precisely determine how the various grant funds were allocated among the programs. It alleged that these deficiencies constituted a violation of Rule 10E-4.12(8)(d)2.e, Florida Administrative Code. At the conclusion of the hearing, respondent stated that it had relied upon an incorrect rule to support the disallowance of the expenditures and moved to amend its pleadings or to continue the hearing. Both requests were denied. The field auditor who conducted the Department audit is no longer employed by HRS and was not present at the final hearing. Although a Department representative testified, he was not familiar with the specific deficiencies in the records, the actual records examined, the field auditor's understanding of the various grants and programs in question, and what additional information, if any, had been requested from the subcontractors when the audit was made. It was also not disclosed which rule, if any, prohibited the maintenance of a single operating account for multiple types of grant funds as long as a clear audit trail was present. Petitioner produced records to demonstrate how the grants funds were allocated even though a single operating account had been used. It also pointed out specific errors made by the field auditor when he conducted the audit. Although petitioner admitted its records were not perfect, it contended they were in such sufficient detail and clarity as to provide a clear audit, trail for the Department auditor. This contention was not controverted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $118,799 in grant funds previously taken from petitioner prior to the commencement of this proceeding. DONE and ENTERED this 11th day of August, 1983, in Tallahassee, 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 11th day of August, 1983.
Findings Of Fact At the time of final hearing the Respondent, Myron Lewis, was the holder of State Certified General Contractor's Licenses as follows: Myron Lewis d/b/a Interior Concepts of Palm Beach, Number CG C005282; Myron Lewis d/b/a Whitten Corporation South, Number CG CA05282; and Myron Lewis d/b/a Custom Pools of the Palm Beaches, Inc. Number CG CB05282. Respondent was engaged in the business of building swimming pools in the Palm Beach area. In connection with that business the Respondent entered into contracts for the construction of pools with several individuals, including the following: James Riley; Michael Belmonti; Walter Beasley; Jose Dorribo; Gerald Gottner; James Overton; and Ronald Malcolm. With regard to the first six names listed above, Respondent had failed to complete the pool and perform according to the contract and, apparently, abandoned the project after accepting a major portion of the contract price agreed upon. With regard to the seventh name listed above, Respondent accepted an initial deposit of $680.00 for construction of a swimming pool but never performed any work and did not return the deposit. Some efforts were made by the Respondent to settle each of the claims against him and to that end there was submitted into evidence general releases from Malcolm, Riley and Belmonti each reciting that the general release was a settlement and compromise of disputed claims and that the payments are not to be construed as admission of liability on the part of Custom Pools of the Palm Beaches, Inc. and/or Myron Lewis. (See Petitioner's Composite Exhibit 3) With regard to the projects set forth in Paragraph 2 above, Respondent apparently terminated because of financial difficulties he and his company were in, none of which was the fault or responsibility of the persons for whom Respondent had contracted to build pools. More than ninety days had elapsed from the time of termination of the project by Respondent and this final hearing. All of these projects occurred prior to 1978. The Palm Beach County Construction Industry Licensing Board, by action taken on January 23, 1978, suspended Respondent's license until further notice. That suspension was the result of the termination of the projects set forth above. The evidence presented indicates that an unspecified amount of money paid Respondent for the construction of specific pools was actually used for other obligations of Respondent and such funds were not used for the prosecution or completion of the project for which they were paid.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The above-styled case involves a revocation of license, a fine, and a survey fee. 2. A previous case was filed against this Respondent also involving the revocation of the license: Agency for Health Care Administration v. Angel Aides Center, Inc. d/b/a Boynton Beach Assisted Living, AHCA No. 2011012687, Case No.: 12-12-246PH. 3. On April 30, 2013, the Agency entered a Final Order in the above described case [AHCA No: 2011012687, Case No.: 12-246PH] adopting the findings of facts and the conclusions of law set forth in the Recommended Order issued by the Agency’s informal hearing officer, which upheld the revocation. 4. The Respondent appealed the Final Order to the Fourth District Court of Appeal, Fourth District Court of Appeal Case No.: 4D 13-1733. 5. On or about June 24, 2013, the parties agreed to place the case in abeyance while the appeal was being reviewed by the Fourth District Court of Appeals. 6. On September 18, 2014, the Fourth District Court of Appeal affirmed the Agency’s Final Order revoking the Respondent’s license 7. On November 17, 2014, the Respondent filed a Joint Notice of Dismissing its Request for a Formal Hearing with the DOAH and the Administrative Law Judge issued an order closing the file and relinquishing jurisdiction to the Agency. (Ex. 2) Filed December 24, 2014 3:16 PM Division of Administrative Hearings Based upon the foregoing, it is ORDERED: 8. The assisted living facility license of Respondent is REVOKED. 9. The Respondent shall pay the Agency $5,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this /7_ day of Drandre 2014. Elizabeth Du , Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. ‘The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct, of this Final er was served on-the below-named persons by the method designated on this 1? fay of et _ 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 2 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Catherine Anne Avery, Unit Manager Assisted Living Facility Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) | Arlene Mayo Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Interoffice Mail) Lourdes A. Naranjo, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Interoffice Mail) Louis V. Martinez, Esq. Louis V. Martinez, P.A. 2333 Brickell Avenue — Suite A-1 Miami, Florida 33129 | (U.S. Mail) John G. Van Laningham Administrative Law Judge Division of Administrative Hearings (Electronic Mail) _ oe NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attomey may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed 4 3 provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact By application dated October 9, 1984, the Palm Beach County Water Utilities Department applied for a permit to construct a temporary septage receiving facility at a location within Palm Beach County known as Sewage Treatment Plant 2S which is adjacent to and immediately north of Petitioner's neighborhood. It was estimated that this facility would receive between 30,000 and 50,000 gallons of septage each day from septic tanks in Palm Beach County. The specific operation procedure to be used at the site begins with access to the site from Forest Hill Boulevard, located to the north, using an unpaved, curved roadway. Septage trucks arriving at the site are faced with a potentially dangerous situation since the roadway is very narrow in parts, and is somewhat elevated and they therefore have to be very cautious to avoid accidents. The arriving trucks back over an asphalt paved area to a transfer box and discharge septage through a four-inch rubber hose into the transfer box. Septage flows through the transfer port and is distributed over a bar screen. Materials collecting on the bar screen are manually raked onto the drainage place, collected and placed into a dumpster for removal to a landfill. Septage then flows from the transfer box through a twelve inch pipe by gravity into a 120-inch wet well, and is diluted. The septage flows through an 8-inch sewer pipe by gravity into an existing pump station wet well on site. Two pumps then pump the septage into a force main system through which it flows to the West Palm Beach Regional Sewage Plant. The facility for which this permit is sought is intended to receive septage formerly deposited at Dyer Boulevard landfill septage facilities which has ceased operation under a Consent Order between Palm Beach County and the Department of Environmental Regulation. This is proposed as a receiving and transporting facility only, and not a treatment facility. Roy Duke, the Southeast District Manager with the Department of Environmental Regulation, who was accepted as an expert in environmental permitting, testified that in his opinion the site in question is the best site available to Palm Beach County for such a receiving facility. Due to the need to find a suitable replacement for the Dyer Boulevard site, the Department of Environmental Regulation requested that the County Water Utilities Department submit this application and supports the issuance of the permit. In accordance with an Operating Agreement between the Palm Beach County Health Department and the Department of Environmental Regulation, the County Health Department has authority to review and issue permits for sewage collection and transmission systems. Upon receipt of this permit application, the County Health Department requested additional information in the review process, which the County Water Utilities Department provided, in order to determine if "reasonable assurances" were being provided that the receiving facility would not discharge, emit, or cause pollution contrary to applicable standards, rules or regulations. According to Umesh Asrani, a Professional Engineer with the County Health Department, who was accepted as an expert in wastewater treatment technology, and the processing and evaluation of wastewater treatment facility permits, "reasonable assurances" have been given in this permit application. Testimony at the final hearing establishes that the proposed site has already been put into operation by the County with the approval of the Department of Environmental Regulation due to the emergency need to find an alternative to the Dyer Boulevard site. A temporary injunction was sought against this operation by residents of the area but it was not granted. The current operation of the facility is not challenged in this proceeding, but Petitioner points out that adverse effects on the neighborhood resulting from this operation are relevant to the issuance of the permit sought in this case. Specifically, Petitioner Kevin Donovan testified that truck traffic and noxious odors have increased since the operation began and would be expected to continue if the permit is granted. He has also seen evidence of spills at the site, and introduced evidence to establish that "sludge" containing commercial wastes and grease was being deposited at the site as well as "septage." Petitioner expressed his concern that hazardous wastes could be deposited at the site. Roy Duke testified that small amounts of hazardous wastes could be disposed of in residential septic tanks and ultimately collected at this site, but that in his opinion this was not a widespread practice, and the amounts would not present a danger to health or the environment. Petitioner also expressed his fear that the surface and ground water could be contaminated from leaks and spills occurring at the site. Expert witnesses testifying on behalf of Respondents stated that no such discharges were reasonably likely to occur. The greater weight of the evidence supports Respondents' position that reasonable assurances have been given that dangerous amounts of hazardous wastes will not be deposited at the site, and that surrounding surface and ground waters will not be contaminated by operation of the site. With the exception of a pH test which is conducted at the site when septage is received to determine its level of acidity, no tests or treatment are performed on the septage at the site. It is simply deposited and transmitted through the sewer system to the West Palm Beach Regional Sewage Plant for testing, treatment, and final disposal. The amount of septage deposited at this site is very small (30,000 to 50,000 gallons per day) in relation to the total amount treated each day at the Regional Sewage Plant (approximately 40 million gallons per day). Based upon bills of lading for deposits at the site since it was placed in operation, the site is used to receive and collect septage, including grease and sludge, from residences, restaurants, construction sites, digesters, and race tracks.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered issuing the permit sought by the Palm Beach County Water Utilities Department and denying the relief sought by Petitioner. DONE and ENTERED this 2nd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1985. COPIES FURNISHED: Frank A. Kreidler, Esquire 521 Lake Worth Avenue Suite 3 Lake Worth, Florida 33460 Julia D. Cobb, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Thomas C. McEaddy, Jr., Esquire Post Office Box 1989 West Palm Beach, Florida 33402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 21st day of November, 2003.
