Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent was a licensed chiropractic physician in the state of Florida with license number CH 0003034. Respondent treated Mr. Richard Turner several times between February 3, 1988 and February 13, 1988. Respondent had treated Turner previously and, in fact, had been Turner's chiropractic physician for several years before treating him on this occasion. Turner had health care coverage through the Daytona Beach Community College Health Care Plan. However, Turner had not met the $200.00 annual deductible at this time. Therefore, Respondent allowed Turner to pay $20.00 per visit to be applied to the portion of his bill not covered by insurance. Turner furnished Respondent's office with certain information concerning his insurance coverage and was made aware by Respondent's office that a claim for reimbursement would be filed with Turner's insurance carrier as had been done on previous occasions. Respondent filed a claim for reimbursement with the Daytona Beach Community College Health Care Plan for services rendered Turner but failed to provide a copy of this billing to Turner until some 2 to 3 months after filing with the insurance carrier. Respondent was not reimbursed for these services by Turner's insurance carrier or Turner; therefore, a claim was filed in the County Court of Volusia County, Florida against Turner. The court awarded the Respondent a judgment in the amount of the unpaid balance, plus costs.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter of Final Order reprimanding Respondent, Michael A. Petker for his failure to strictly comply with Section 460.413(1)(bb), Florida Statutes. Respectfully submitted and entered this 16th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 16th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5267 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. COPIES FURNISHED: Cynthia Shaw, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0760 Paul Bernardini, Esquire LaRue Bernardini, Seitz & Tresher Post Office Drawer 2200 Daytona Beach, Florida 32015-2200 Lawerence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue This proceeding arose from proposed action by HRS to approve an application for Certificate of Need filed by Beaches. While the application included relocation of the existing facility, the only portion objected to by Memorial was the proposed addition of outpatient obstetrical services in the form of a birthing center. A similar objection was made by St. Lukes Hospital Association in Division of Administrative Hearings case #85-1515. Both cases were consolidated until St. Lukes was dismissed for lack of standing. (See Final Order dated November 21, 1985 in case number 85-1515. Upon commencement of the hearing the Hearing Officer clarified for the record that Beaches' Motion for Joinder of Party was granted, and Beaches participated at the hearing, as it had in all pre-hearing matters, as a co-respondent with HRS. Beaches offered evidence in support of its application through three witnesses and seven exhibits; Memorial contested the additional services through the testimony of five witnesses and six exhibits. HRS presented a single witness and no exhibits. All post-hearing submissions by the parties have been fully considered. Those include a brief by Memorial, written closing argument by Beaches and Proposed Recommended Orders by all three parties. Specific rulings on proposed findings of fact are found in Appendix A, attached to and incorporated in this Recommended Order.
Findings Of Fact The Parties The Beaches is a public hospital supported by taxes through a special hospital taxing district, most recently authorized by Chapter 82-291, Laws of Florida, and by a 1982 voters' referendum. The hospital currently includes 82 acute care beds and is located in Jacksonville Beach within subdistrict 3 of HRS District IV. The hospital is managed under a contract with Hospital Corporation of America. In its application for CON #3526, Beaches proposes to move its facility to a nearby location and to add obstetrical services on an outpatient basis through a connected birthing center. No additional beds are intended. (Beaches Exhibit #1, Application for CON) The birthing center, consisting of approximately 2700 square feet, includes its own entrance through a family waiting room, a nurses station, reception area, examination room, staff lounge and toilet, office, utility room and janitor's supply closet. The two birthing rooms each have their own adjacent kitchenette and toilet/bathroom. The birthing center is intended to accommodate admission, delivery and discharge of the mother and baby, generally within a 24-hour period. (T.25) Memorial is a 353-bed acute care hospital also located in subdistrict 3, District IV. It currently provides obstetrical services through its 32-bed obstetrical wing.(T.213, Beaches Exhibit #7, p.51) HRS completed its State Agency Action Report on the Beaches application in February 1985, and concluded that the project should be approved in its entirety. (Memorial Exhibit #4) The State and Local Health Plans The 1985 State Health Plan acknowledges that the demand for highly accessible health care facilities has increased. (p.23) It recognizes an increase in the number of birthing centers and conjectures that in the future ". . . birthing centers may become a major provider of obstetrical services . . . and that . . . hospitals may be relegated to the role of a support institution equipped to handle emergencies, problem cases and overly cautious individuals." (p.27) Birthing centers are an alternative to hospitals for normal pregnancies but are not a substitute in high risk situations. (p.31) One goal of the state plan is the reduction of infant mortality. (p.16) HRS District IV includes Duval, Nassau, Baker, Clay, St. Johns, Flagler and Volusia counties. Subdistrict 3 consists of southeastern Duval County and all of St. Johns County. The 1984 District IV local health plan projects a shortage of 54 obstetric beds in 1988, 16 of which are identified in subdistrict 3. The plan further states, however, that unopened beds (51 in subdistrict 3) could be utilized to ease obstetrical bed shortages. (p.50) In keeping with the rapid growth of population in the area and increase in number of deliveries, the 1985 local health plan forecasts a shortage of 22 obstetrical beds in 1989 in subdistrict 3 with 51 beds still identified as unopened and unclassified by service. (p.84) Because of a surplus of acute care beds in subdistrict 3, the plan recommends that no CONs be approved which would increase bed capacity in the subdistrict through 1989. Obstetrical beds are a sub-set of acute care beds. Two factors would suggest a downward adjustment in the shortages projected in subdistrict 3: approval of 11 obstetrical beds for Baptist Hospital (also in subdistrict 3), and the methodology of allocating patient days to subdistrict 3 when St. Lukes relocated there from subdistrict 1 and dropped its obstetrical services. Memorial contends that the allocation method is in error since Methodist Hospital in subdistrict 1 opened an obstetrical unit (presumably inducing obstetrics patients who formerly would have gone to St. Lukes to stay in the subdistrict),and St. Lukes no longer provides the service. While it is simple to apply the first factor by subtracting the 11 approved beds, precise application of the second factor is impossible. Conceptually one could agree with Memorial that an allocation of 38% of St. Lukes former obstetric patient days to subdistrict 3 is excessive. However, no evidence was produced for an alternative allocation and Memorial made no effort to have the local health council adjust its allocation. Memorial also urges that the need for obstetrical beds in subdistrict 3 is overstated since the 75% occupancy standard has not been met. However, the 1985 district health plan shows a current average occupancy rate of 70.3% with the lowest figure from Flagler hospital, located in St. Johns County at the southern end of the subdistrict. The plan suggests that when there are more than one widely separated hospital service areas within a single subdistrict (as St. Augustine and south Duval in subdistrict 3), the State should make an exception to the District health plan when it is reasonable and logical to do so. (p.92) In fact, Herbert Straughn, HRS Medical Facilities Consultant, testified that the level of occupancy of existing beds is not the only consideration or driving force in determining need for additional beds. (T-p.347-348) Existing Like Facilities and Other Alternatives to Proposed Service The Beaches outpatient birthing center is a unique service in the Jacksonville area, and possibly throughout the State. Other hospitals maintain birthing rooms, with a homelike atmosphere and accessibility to family members, but those rooms are utilized virtually exclusively for obstetrical inpatients. Freestanding birthing centers also exist, although no evidence established how many exist in the Jacksonville area. Three hospitals in subdistrict 3 offer inpatient obstetrical services: Baptist, with 27 beds: Flagler with 8 beds; and Memorial, with 32 beds. (Beaches Exhibit #7, p.51) Flagler's occupancy rate in 1984 was only 52.3% but its distance from the Beaches area militates against its being a viable alternative. In 1984 the other two hospitals operated at 75.8% (Baptist) and 70.2% (Memorial) (Beaches Exhibit #7, p.85) The limited evidence of occupancy rates in 1985 suggests that for both hospitals the occupancy rates were at, or above, the 75% level. While hospitals maintaining obstetrical beds often have the capacity, in the event of over-flow, to convert other acute care beds on a temporary or permanent basis, this conversion would not provide the service sought by women who prefer the birthing center experience. The 1985 State Health Plan cites unnamed and undated surveys which indicate that 11% of expectant mothers would prefer a freestanding birthing center to hospital delivery and conjectures that this figure is likely to increase as attitudes change. (p.32) Even though the Beaches project is not a "freestanding" center, it is more similar to that facility than a hospital obstetrics unit, since it is outpatient-oriented. Quality of Care The American College of Gynecologists classifies three levels of care. Level I is routine normal care to women and infants. It is targeted for low-risk patients but must be capable of handling certain emergency procedures such as resuscitation of infants. Level II is care to women and newborns who have more risks involved. Level II facilities exercise some independent judgment as to what degree they can manage a patient who is having problems. Level III provides the highest level of care and is considered to be capable of handling the most complicated high risk cases and the fullest range of services. (T.242) In the Jacksonville area, only University Hospital is classified as providing Level III services. It provides back-up and a transportation team to the other hospitals in the area. (T.242) The Beaches proposed birthing center would be classified as a Level I facility. It intends to establish a transfer relationship with appropriate facilities to insure the back-up medical care for the problems which occur. (T.35) In addition to the transfer arrangements, Beaches will have a screening program to insure that at an early stage the high risk cases will be referred to Level II and III facilities. The screening program will be developed in detail once physicians are recruited, so as to insure their input in the guidelines. Other quality of care mechanisms to be used by the center include standard accreditation and licensure, peer review programs, the hiring of trained nursing staff and continuous updated training programs for staff. (T. 34-36) The objection to the quality of care expressed by neonatolgist expert, Dr Chiu, was generally directed to any further Level I services in a metropolitan area. He was not familiar with the specifics of the Beaches' proposal. (T-25l) Freestanding birthing centers are now licensed by the state. The State Health Plan provides: "With birth centers now covered by licensure in Florida, the issue of quality care which is most often raised by established physicians and hospitals with obstetrical departments has been recognized and handled by the Legislature." (p.32) From a design standpoint the Beaches center would meet state requirements for both freestanding centers and birthing rooms in a hospital. (T 91-9 ) Staffing The parties have stipulated that physicians representing the only three obstetrician groups practicing in the projected service area do not support the addition of obstetrical services to the applicant's proposed relocation facility. (Stipulation, filed 10/18/85) This fact does not, however, suggest that recruitment will be impossible or even difficult. Beaches has not commenced recruitment as it intends to wait to insure that the project will be approved. It does not plan to require its obstetricians to limit their practice to the Beaches. (T.47) For the birthing center, the Beaches will hire six registered nurses trained in labor and delivery as well as infant resuscitation, CPR and advanced cardiac life support. (T. 31, 36) For both its doctors and nurses, the Beaches will utilize the recruiting services of its management corporation, Hospital Corporation of America. (T.31, 33) The Beaches long term plan suggests that if Jacksonville area OB/GYNs cannot be interested in using its outpatient services then consideration should not be given to offering obstetrics in the new facility since another inpatient obstetrics program would be duplicative and costly. (Beaches Exhibit 1, Long Term Plan, p.39) That provision does not imply that recruitment would be difficult or that recruitment should be limited to existing physician groups. The context of that provision in the plan indicates a concern that the obstetrical services be outpatient, and if doctors are not interested, the services should be abandoned rather than modified to inpatient services. Physical and Economic Accessibility Improved access is one of the considerations given in the State Agency Action Report which found the CON should be granted. The Beaches Hospital is the only hospital in Duval County directly on the Atlantic Coast. The beach coast is separated from Memorial Hospital by a waterway served by a drawbridge. (Memorial Exhibit #4, p.5,7) Memoria1 maintains the closest obstetrical services to the beach. Aside from the waterway impediment addressed above, the beaches area is approximately 20 minutes from Memorial during non-peak traffic hours. (T.57-58) As Beaches is a tax-supported hospital, its services_ would be provided to all eligible patients regardless of ability to pay. Most obstetrical services to indigents in the Jacksonville area are currently provided by University Hospital. University Hospital, is approximately 30 miles from the beaches. (T.37,38,77) University Hospital had an obstetrical occupancy rate for 1984 of 114.2%. (Beaches Exhibit #7, p.85) About 75% of all deliveries are low risk and suitable for Level I births. (T.28) While indigent mothers tend to be more high risk, they are not all high risk and those in the beaches area who are medically eligible for the birthing center would benefit from the prenatal classes at the hospital and the geographical proximity. Capital Costs and Financial Feasibility The proposed birthing center will have an initial start up cost of approximately $320,000: $77,000.00 for equipment and around $245,000.00 for construction costs. (T 36,92) The parties have stipulated that funds for start up costs are available to the applicant. (Stipulation, filed 10/18/85) These costs are reasonable. (T. 92) Annual operating costs will amount to approximately $200,000.00 to $230,000.00. (Beaches Exhibit #5) Beaches projects an excess of revenue over expense for each year ranging from approximately $18,000.00 in 1987 (first year of operation) to approximately $110,000.00 in 1989. (Beaches Exhibit #5) However, these projections are based upon an assumption of 336 births the first year and 480 births the third year. The demand for alternatives to traditional obstetrical services in the beaches area is unknown and extremely difficult to predict. (Beaches Exhibit 1, Long Range Plan, p.40) Beaches methodology for calculating its proposed utilization rate is inconsistent: its application states that the projected figures are based on 10% and 12% of births expected in the beaches area for the first and second years of operation. (Beaches Exhibit #1, p.108); in testimony the methodology was described as applying the Beaches' market share of approximately 30% to the total anticipated number of Level I deliveries in the primary service area. (T. 30,107,117) The methodology in the application is not explicated; the "market share" methodology is explained in the testimony of Bart Hove and Theresa Dupree, Beaches hospital administrator and comptroller, respectively. As conjectural as it is, the loose "market share" methodology is accepted as reasonable. It assumes, first, that not all births in the area are suitable for Level I delivery. After that it picks up only that percentage of the market which the Beaches now enjoys. It also takes into consideration lower costs, improved access and a unique service concept which has not yet been marketed in the Jacksonville area. Both changing attitudes toward outpatient services in general and the interest generated by marketing the service are factors likely to positively affect utilization. (T.80-81,230-231,187-188) While financial losses caused by a service can lead to an increase in patient charges, it is unlikely that Beaches would raise other charges if the center were losing money. (T.134) Beaches does not currently subsidize any service which is losing money with revenue from a different service. (T.135) To HRS, the advantage of these services to the community override the potential loss of money in the services. (T. 376 ) Impact on Competition Just as utilization of the new service is difficult to predict, so also is its impact on existing facilities providing similar services. Memorial presented an exhibit intended to demonstrate the financial impact of the proposed birthing center. (Memorial Exhibit #2) However, the exhibit is flawed as it does not consider an increase in deliveries as population increases. (T.182) It allocates deliveries at the Beaches from a 3-zipcode area, as opposed to the larger area (5 zipcodes, plus Mayport) utilized by the Beaches. (T.105) The exhibit also addresses gross revenue loss, rather than net loss. (T.180-181) Given the small number of deliveries anticipated by Beaches (336-480) in comparison to Memorial's much higher volume, 2300 deliveries in 1984 (T.269) and Memorial's excess revenues in 1984 of $3.5 million (T.186), the economic impact on Memorial would be minimal. Memorial prides itself on its women's health care (T.214) It also enjoys the highest charges for a normal delivery, based on Hospital Cost Containment Board reports, of any hospital in the District: $505.00 for the baby, and $1,592.00 for the mother. (Memorial Exhibit #2) Given these 1984 figures, which are likely to increase, in comparison with Beaches 1987 projected fee of $857.00 for each birth, obstetrical health care consumers would save $416,640.00 in the first year of the Beaches center's operation, if the Beaches projected utilization rate of 336 for the first year is correct. While the services are clearly different (inpatient vs. outpatient deliveries), to the administrator of Memorial, Mark Mrozek, "A birth is a birth." (T 217) Memorial does not now encourage outpatient births and does not maintain a set fee schedule for such. However, if Memorial finds the market demands a type of services, it will begin providing them, with presumably a cost significantly below its inpatient rate. (T.217,274-275,413) In such manner competition would be enhanced by the establishment of the proposed birthing center.
Recommendation Based upon the foregoing, it is recommended that Certificate of Need No. 3526 be approved. DONE AND ORDERED this 22nd day of January 1986 in Tallahassee, Leon County, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January 1986. COPIES FURNISHED: David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Christopher C. Hazelip, Esquire Michael J. Dewberry, Esquire 1300 Gulf Life Drive Jacksonville, Florida 32207 John F. Gilroy, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Thomas A. Sheehan, III, Esquire 625 North Flagler Drive 9th Floor Barnett Centre Post Office Box 3888 West Palm Beach, Florida 33402 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Memorial Adopted in the preamble and paragraph 1. Adopted in substance in paragraph 3. Adopted in substance in paragraph 2. Adopted in the preamble. Adopted in paragraphs 2, 5 and 10. Adopted in the preamble. Adopted in paragraphs 7, 8 and 10, except the final sentence regarding reduction of occupancy rates which is not supported by competent substantial evidence. Adopted in paragraph 6. Adopted in paragraphs 6, 7 and 8. Adopted in part in paragraph 18. The final sentence regarding the long term plan's failure to identify need is rejected as being immaterial and a misstatement of the facts. Population projections are included in the plan, with a conclusion that obstetrical care "could be a viable service in the Beach area zip codes." (long term plan, p.39) Adopted in paragraphs 23 and 24. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as unsupported by competent substantial evidence. The statement of no support by Jacksonville physicians is far broader than the parties' stipulation. Rejected as a misstatement of the plan. See paragraph 18. Adopted in part in paragraphs 11 and 21. Rejected as unnecessary. Rejected as immaterial. Rejected as being unsupported by competent, substantial evidence. Stricken by consent of the parties. See Beaches Motion to Strike, dated December 30, 1985 and Response by Memorial dated January 2, 1986. Rejected as unnecessary and, as to the final sentence, unsupported by competent substantial evidence. Partially adopted in paragraph 25. The market share approach is, however, accepted as reasonable. Adopted in paragraph 22. Adopted in part in paragraph 10. The fact relating to interest of Jacksonville area women is unsupported by competent substantial evidence. Rejected as contrary to the weight of the evidence. See paragraphs 25 and 26. Adopted in paragraph 26. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. The statement regarding availability of sufficient delivery services is rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence and unnecessary. The speculative nature of the financial impact on Memorial is addressed in paragraph 27. Addressed in paragraph 22, but rejected in substance. Adopted in paragraph 11. Rulings on Proposed Findings of Fact Submitted by Beaches Adopted in preamble and paragraph 1. Adopted in substance in paragraph 1. Adopted in paragraphs 1 and 12. Adopted in paragraphs 16 and 23. Rejected as unnecessary. Adopted in substance in paragraphs 6 and 7. Adopted by implication in paragraph 27. Adopted in paragraph 4. Adopted in substance in paragraphs 7 and 8. Adopted in paragraph 10. Adopted in substance in paragraph 10. Rejected as unnecessary and confusing. Adopted in paragraph 27. Adopted in substance in paragraph 27. Adopted in substance in paragraphs 27 and 28. Adopted in substance in paragraphs 27 and 28. Adopted in paragraph 16. Adopted in part in paragraph 17. The fact of Memorial's experience is unnecessary. Adopted in substance in paragraph 15. The facts regarding the Tallahassee experience are irrelevant. Addressed in conclusion of law, paragraph 7.I Adopted in paragraph 12. Adopted in substance in paragraph 13. & Rejected as being cumulative, however, the quality of care mechanisms are addressed in paragraphs 11 and 12. Adopted in substance in paragraph 14. The classification of Beaches proposed facility is addressed in paragraph 11. The remainder of the paragraph is unnecessary. Addressed in conclusions of law, paragraph 6. Adopted in paragraph 23. Adopted in paragraph 23. Rejected as unnecessary. Adopted in paragraph 25. Rejected as unnecessary. Adopted in part (as to the State Health Plan) in paragraph 4. The remainder is unnecessary. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraphs 19 and 20. Adopted in paragraph 21. Rejected as unnecessary. Rejected as unnecessary. Adopted in paragraph 28, except that the savings to consumers has been recomputed for a total of $416,640, rather than $441.168.00 (not a significant difference). Adopted in substance in paragraph 28. The State Health Plan is addressed in paragraph 4. Most of this proposed finding is rejected as cumulative and unnecessary. Adopted in substance in paragraph 6. The long term plan was addressed in paragraph 18 and the proposed finding is adopted in substance in that paragraph. Adopted in substance in paragraph 18. Rulings on Proposed Findings of Fact Submitted by HRS Paragraph 1 adopts the Proposed Findings of Beaches. See preceding rulings on those proposed findings. Adopted in paragraph 1. Adopted in paragraph 6.
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues in this instance are promoted in keeping with an administrative complaint brought by the Petitioner against the Respondent, charging violations of Sections 943.13 and 943.145, Florida Statutes. These allegations relate to the claim that Respondent was involved in a liaison with a prostitute in which he exchanged Valium for sex. The encounter between the Respondent and the prostitute is alleged to have occurred while the Respondent was on duty. This Valium was allegedly obtained from an automobile which was examined as part of the Respondent's duties as a law enforcement officer. It is further alleged that the Valium should have been turned in as part of his responsibilities as a law enforcement officer.
Findings Of Fact Respondent is a holder of a certificate as law enforcement officer, Certificate No. 98-10527. That certificate is issued by the State of Florida, Department of Law Enforcement, Criminal Justice Standards and Training Commission, and Respondent has held that certificate at all relevant times in this proceeding. Respondent has been employed as a police officer by the Daytona Beach, Florida, Police Department in the relevant time period and it was during that tenure that Respondent is accused of having committed the offense as set forth in the administrative complaint. Debbie Ofiara is the only witness to the Respondent's alleged indiscretion while on duty. Ms. Ofiara is an admitted prostitute, who has drug problems so severe that she required specific program treatment to address them. In particular, that drug difficulty relates to the drug Dilaudid. In addition, Ofiara has served six months in jail for grand theft, a felony conviction. At the time of the alleged incident with the Respondent she was under the influence of drugs and was under the influence of drugs when she reported that incident to a police investigator in the Daytona Beach Police Department. When testimony was given at the hearing, Ofiara was attending a drug program while awaiting a sentence for a drug offense related to cocaine. She had pled guilty to that drug charge, a felony. Ofiara has been arrested for prostitution, arrests made by the Daytona Beach Police Department on three different occasions. She had been arrested for hitchhiking by Officer Cadenhead prior to the incident which underlies the administrative charges and indicates that she "took offense" at the arrest. Moreover, she acknowledges some past concern about her treatment in encounters with Officer Gary Gallion of the Daytona Beach Police Department in his official capacity. Ms. Ofiara claims that sometime in November 1982, in the evening hours, the Respondent, while on duty as a police officer, in uniform and driving a marked patrol car, approached Ofiara and made arrangements to meet her. She further states that this rendezvous occurred in Daytona Beach, Florida, and that in exchange for Valium tablets which the Respondent had obtained from an examination of a car he had been involved with in his police duties, which tablets were not turned in, Ofiara performed oral sex for Respondent's benefit. Some time later, Ofiara related the facts of the encounter with Officer Cadenhead to an internal affairs investigator with the Daytona Beach Police Department, Lieutenant Thomas G. Galloway. She also gave Galloway a bottle which she claimed was the bottle in which the Valium was found. The vial or container was not examined for any residue of the substance Valium or examined for fingerprints of the Respondent. Following Galloway's investigation of the allegations, the Daytona Beach Police Department determined to terminate the Respondent from his employment. That termination was effective February 11, 1983. Respondent was subsequently reinstated after service of a four-week suspension without pay by order of the City of Daytona Beach Civil Service Board, effective March 9, 1983. Having considered the testimony of Ms. Ofiara and the testimony of the Respondent in which he denies the incident with her, and there being no corroboration, Ms. Ofiara's testimony is rejected for reasons of credibility. As a prostitute, drug user, felon and person with a certain quality of animosity toward the Respondent and in consideration of the demeanor of the accusing witness and Respondent, her testimony is rejected.
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
Findings Of Fact The proposed dialysis clinic 1/ would be located in West Boca Raton near "Century Village," a large condominium complex serving mainly the retired and elderly. The clinic would be owned and controlled by Neil Schneider, M.D., a nephrologist. The application is opposed by two nearby clinics which are owned and controlled by Ashok Patel, M.D., also a nephrologist. The "Service Area" at issue was disputed by the parties. HRS District 9 encompasses Palm Beach, Indian River, Okeechobee, Martin and St. Lucie Counties. Although this district has not been subdivided by either the local health council or HRS, a smaller "Service Area" must be defined for purposes of these proceedings. Kidney dialysis patients are required to visit their dialysis facility three times each week for approximately four hours per treatment. Most patients are in poor health and unable to drive (or even be transported by others) for long periods. Thus, accessibility of the dialysis clinic is an important consideration in this health care field. Either Palm Beach County or a South Palm Beach County "cachment" area 2/ constitutes an appropriate service area for purposes of this proceeding. Patients can drive from most locations in the county to existing dialysis clinics in 45 minutes or less. As noted above, however, much shorter driving times are desirable for these patients. The HRS witness, who was qualified as an expert in health care planning, calculated a county-wide need for four additional kidney dialysis stations. She based her calculations on the mathematical formula set forth in Rule 10-5.11(18)(a), F.A.C., using information from "Network 19" quarterly report's 3/ and average patient census data for calendar year 1984. The Network 19 representative, who was similarly qualified, calculated a need for five additional kidney dialysis stations in the proposed South Palm Beach County sub-area. His input consisted of the latest Network 19 patient data and projections for mid-1986. Petitioners attacked the designation of a sub-area for this proceeding as well as the patient and general population estimates utilized. The identification of a sub-area is reasonable in this situation given the relative immobility of these patients. However, the sub-area need calculations should be cross checked and confirmed by county-wide figures. Given the similarity of conclusions, a number of four to five is found to be an appropriate "hard number" starting point in this proceeding. Rule 10-5.11(18)(a), F.A.C. provides that "the base period. . . is one year from the date that the application is deemed complete by. . .[HRS]. Petitioners argue that the application was complete several years ago, and that it is improper to consider 1986 population data. This argument is rejected, however, as it is inconsistent with HRS practice and with common sense. Because of the years which CON cases often spend in processing, litigation and facility construction, one year from the date of final hearing has been recognized as the most appropriate period for these determinations. Petitioners identified some relatively minor errors in input data and calculations. These errors would not, however, significantly change the so called "hard numbers" stated above. Both the Applicant and Petitioners presented additional expert testimony of health care consultants. Not surprisingly, their conclusions tended to reduce the need on one hand (Petitioners) and increase it on the other (Applicant). Although their testimony is incorporated in those considerations discussed below, it is rejected as to modification of the data utilized and generated by the HRS and Network 19 witnesses. The strongest argument favoring grant of the application concerns Petitioners' restrictive policies. This argument was well supported by the testimony of area nephrologists who have practiced in or attempted to utilize Dr. Patel's clinics, by the testimony of former employee, by patients of Dr. Patel's clinics and by documents setting forth these policies. One nephrologist (Dr. Krause) was refused admission to Petitioners' staff because he was not admitted to the staff of the local community hospital. However, that hospital also had a closed staff policy which, in "Catch 22" fashion, seriously limited this nephrologist's ability to practice his specialty. Petitioners argue that such hospital staff privileges are needed so that the nephrologist can follow his patient to the hospital in the event of emergency. This argument ignores the nephrologist's responsibility for his patients, and is not a proper basis for denial of staff privileges. Additionally, Petitioners denied staff privileges altogether to another nephrologist (Dr. Sonneborn) when he set up his practice in Boca Raton in 1976, on the claim that the Boca Raton facility was a closed unit. Here, it should be noted that Petitioners' two dialysis clinics are the only units in the South Palm Beach area. Because of patient immobility, this has resulted in something of a monopoly. Without staff privileges at a convenient dialysis clinic, Dr. Sonneborn was literally unable to practice nephrology, and turned these patients over to Dr. Patel. Area nephrologists also complained of being required to sign a contract with Petitioners as a condition of gaining staff privileges at either of Dr. Patel's clinics. Although such a contract is not customarily required, this in itself was not shown to be a restrictive measure. However, some of the conditions of the contract were, indeed, restrictive. For example, the contract required that only bona fide residents of Palm Beach County under the care of local physicians could be admitted. This effectively excluded seasonal and transient patients (except when Petitioners found it convenient to waive the restriction). Petitioners also refuse to admit new "hepatitis positive" dialysis patients to either facility. Many dialysis patients acquire hepatitis or show hepatitis positive on their blood tests. Special handling of such patients is required, but to exclude them altogether is in the words of one such patient- witness "mean-spirited" (TR 738). The Applicant (Dr. Schneider), on the other hand, has a reputation at his existing clinics for accepting transients and hepatitis positive patients. The Applicant proposes to continue such policy at the proposed clinic if the C.O.N. is granted. However, the initial operating instructions prepared for this proposed clinic appear to prohibit hepatitis patients. Therefore, any C.O.N. issued as a result of this proceeding should require acceptance of hepatitis positive patients. Patients without coinsurance have also been refused by Petitioners. This is the patient who has only the 80 percent Medicare cost coverage and lacks the insurance or private resources to pay the remaining 20 percent of the clinic dialysis charge. In fairness however, Petitioners have occasionally taken "undesirable" patients such as indigents without basic Medicare coverage and prisoners. The quality of care at Petitioners' facilities is generally satisfactory. There was a large turnover in staff nurses about two years ago, and more recently, some inadequacies in supplies. Although these problems have apparently been corrected, the lack of "crash carts" for emergency treatment of patients who experience cardiac arrest is a significant and continuing deficiency. Petitioners' contention that nearby hospital paramedics can be called on in cardiac arrest situations is not an adequate response. In fact, one patient died in Petitioners' clinic from cardiac arrest. This patient's chance of surviving would have been greater had such emergency facilities been available. The proposed seven station facility was shown to be financially feasible. Even with as few as four stations, the unit was expected to be profitable by its second year of operation. Petitioners question the patient acquisition assumptions of the proposal and may well be correct that these are overly optimistic. However, Dr. Schneider has extensive experience in operating other South Florida clinics profitably, and has more than adequate personal financial resources to see the new facility through its initial loss period. The rate set by Medicare is $122 per patient treatment in South Palm Beach County. This provides a steady, predictable and secure source of revenue to the dialysis clinic. Thus, financial feasibility in this health care specialty is a near certainty, particularly in a high growth area such as South Palm Beach County. It should also be noted that the opening of the proposed clinic will have no impact on health care costs, since these costs are effectively controlled by Medicare. The Applicant seeks additional stations for hemo dialysis training and CAPD training. While these are worthwhile goals, it was not shown that a real need for such special stations exists in this area. Neither is there any medical school connection which would support additional stations. The Applicant also seeks to justify additional stations on the basis of hepatitis treatment which requires isolation, and an allowance for the large number of tourists and transients present during the winter months. These visitors were not included in the statistics which support the four to five stations discussed previously. Petitioners argue that their existing South Palm Beach County Clinics are under-utilized and that they will be injured if this application is granted. As of March 31, 1985, these facilities had utilization rates of only 54 percent (Boca Raton) and 72 percent (Delray). Although these units remain profitable, this is significantly below the 80 percent "optimum," or industry utilization standard. Additionally, there are three kidney dialysis centers in North Palm Beach County whose utilization rates are in excess of 100 percent. Although Petitioners, because of their restrictive policies, may be partially responsible for their low utilization rates, county-wide utilization figures do, in fact, indicate a greater need for additional facilities in North Palm Beach County than in the Applicant's proposed sub-area. However, there was no evidence that any of the existing facilities are seeking to expand so as to meet additional Palm Beach County dialysis needs. Therefore, the "unmet" need for additional stations must be considered as available for award to this Applicant.
Recommendation From the foregoing it is RECOMMENDED that HRS issue a Certificate of Need to the West Boca Raton Artificial Kidney Center authorizing the opening of a five-station kidney dialysis clinic on or after July 1, 1986, with the specific requirement that this clinic accept hepatitis and hepatitis positive patients, and that it agree to add no new stations without HRS approval prior to July 1, 1988. DONE and ENTERED this 18th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, 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 18th day of September, 1985.
The Issue Whether the Palm Beach Health Department (Respondent) committed an unlawful employment practice by failing to reasonably accommodate the alleged disabilities of DeLores Boatwright (Petitioner). Whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on Petitioner’s age.
Findings Of Fact At all times pertinent to this proceeding, Respondent has been an agency of the State of Florida pursuant to section 20.43, Florida Statutes, and an employer within the meaning of section 760.02(7), Florida Statutes (2012). Petitioner was employed by Respondent between January 3, 2002, and January 31, 2013. On January 31, 2013, Respondent terminated Petitioner’s employment for cause. Petitioner worked as an HIV counselor, which required her to provide both pre-test and post-test counseling to clients interested in HIV testing. Counseling performed by Petitioner involved her sitting in an office setting with the door closed to discuss with clients risks for contracting HIV and methods to reduce those risks. HIV counseling sessions are typically conducted face to face. There was a dispute in the record as to how much computer input is necessary while conducting a counseling session. The greater weight of the credible evidence established that any notes would typically be taken by hand and that any computer input would typically be made after the counseling session had been completed. Counseling sessions typically lasted approximately 15 to 20 minutes. Due to privacy and HIPPA considerations, counseling sessions were conducted in a private office with the door closed. Petitioner was directly supervised by Robert Scott from 2005 until December 2011. In October 2009, Petitioner was rear-ended in a car accident while working. This accident prompted a workers’ compensation claim. Petitioner advised Mr. Scott that she had hurt her neck, upper back, and right shoulder. Initially, Petitioner had work restrictions of no lifting, no driving for the job, and no bending. As of October 27, 2009, Petitioner’s work restrictions were lifted, and no other work restrictions were placed on Petitioner. On January 28, 2010, Petitioner was referred to Dr. Edward Chung, an orthopedic specialist. Dr. Chung placed no work restrictions on Petitioner. On February 3, 2010, Dr. Chung determined Petitioner had reached maximum medical improvement and gave her an impairment rating of zero percent. During the remainder of her employment, Petitioner had no on-going impairment rating or work restrictions as a result of her automobile accident. Petitioner worked at the West Palm Beach Health Center, which is Respondent’s primary care medical clinic. This clinic, located on 45th Street in West Palm Beach, is generally known as the 45th Street Clinic. The majority of the rooms in the 45th Street Clinic are examination rooms with an examination table, a small sink, and a small desk for use by the nurse or doctor. The 45th Street Clinic has a limited number of consultation rooms, which are typically small interior offices with a desk that separates the counselor and client with counter space behind or to the side of the counselor for computer work. For a year and a half between 2004 and 2005, Petitioner conducted her counseling sessions in Room 104 of the 45th Street Clinic. Room 104 is a relatively small office with no windows. At the end of 2005, Petitioner’s office assignment changed to Room 102, which is also an interior office with no windows. This move was at Petitioner’s request when the room became available due to the retirement of a colleague. Room 102 is slightly larger than Room 104. Petitioner remained in Room 102 until the beginning of 2010. While she was assigned Room 102 and Room 104, Petitioner kept her door closed, even when she was not seeing clients. This practice was problematic because other staff members were unable to determine when Petitioner was available to counsel patients. Mr. Scott discussed with Petitioner on numerous occasions the need for her to keep her office door open when she was not with a client. Petitioner informed Mr. Scott that she kept the door closed because of a sinus problem that felt better when the door was closed. Petitioner never provided medical documentation of her alleged sinus problem, and there was no credible explanation why keeping her office door closed would improve a sinus condition. In early 2010, Petitioner’s room assignment was changed from Room 102 to Room 107. This reassignment was necessary because Respondent needed to make Room 102 available for another, legitimate business use. Room 107 was an exterior office with a window. Its furniture was in an “L” shape attached to a wall. The office contained a desk and a counter for a computer. During counseling sessions, the counselor and client would sit face-to-face on opposite sides of the desk. The computer was to the counselor’s side, which required the counselor to turn or swivel her chair away from the client to access the computer. In December 2010, Petitioner complained to Mr. Scott that the furniture arrangement in her office was causing her neck and back pain. Petitioner attributed that pain to turning to access her computer or turning to talk to a client while on the computer. In response to Petitioner’s complaint of pain, Mr. Scott requested that Michial Swank, Respondent’s risk manager, perform an ergonomic evaluation of the furniture in Room 107. Such an evaluation is a service that requires no medical documentation and is offered by Risk Management to any employee. Mr. Swank determined that if the furniture could be reconfigured, it should be so that Petitioner did not have to twist to look from a client to the computer or vice versa. Mr. Swank provided his assessment to Respondent’s General Services Department to determine whether the furniture could be reconfigured. Respondent’s General Services Department determined the furniture could not be reconfigured because it was modular furniture custom-made for the office and bolted together. Around March 2011, Dr. Cook, the director of the 45th Street Clinic, proposed that Petitioner change rooms with another HIV counselor located in Room 104. Mr. Swank performed an ergonomic assessment on Room 104 and determined the furniture and computer location to be ergonomically correct for counseling a patient while on the computer. Respondent offered Petitioner the option of moving from Room 107 into Room 104, but she refused that offer and opted to remain in Room 107. Petitioner cited her sinus problems as the reason she did not want to move back to Room 104. Despite her decision to remain in Room 107, Petitioner attempted to persuade Helen Bonner, a nurse, to switch offices with her. This attempt was without the knowledge or permission of Mr. Scott or any other administrator. Ms. Bonner’s room was set up for clinical use for patients with seizure disorders. When Yankick Gribikoff, the nursing supervisor, heard of Petitioner’s effort to have Ms. Bonner swap offices, Ms. Gribicoff immediately squelched the idea. Ms. Bonner’s office had specialized equipment, including specialized telephone equipment and refrigerators. Ms. Gribicoff had valid reasons to end Petitioner’s efforts to swap rooms with Ms. Bonner. In the fall of 2011, two of Respondent’s clinics were closed due to budgetary constraints. Certain personnel were moved from those closed clinics into the 45th Street Clinic. At that time, Rooms 104 and 107 were the only two rooms in the 45th Street Clinic available for HIV counseling. It became necessary to use Room 107 for both HIV and STD (sexually transmitted disease) counseling. Because of its location and proximity to other services, Respondent had a valid reason to select Room 107 over Room 104 as the room for HIV and STD counseling. While Petitioner had had some training in STD counseling, she had difficulty with that type of counseling. An expert in STD counseling was among the personnel being moved from one of the closed clinics to the 45th Street Clinic. Respondent had a valid reason to select the expert to occupy Room 107. Respondent reassigned Petitioner to Room 104. Petitioner agreed to the reassignment and moved into Room 104 on October 3, 2011. Petitioner kept the door to her office closed even when she was not counseling clients. In early November 2011, Mr. Scott received a complaint about the physical condition of Room 104 from someone who used that office while Petitioner was away. The complaint centered on the room’s lack of cleanliness. On November 18, 2011, Mr. Scott met with Petitioner to discuss certain concerns he had. It was during that meeting that Petitioner told Mr. Scott, for the first time, that she was claustrophobic in Room 104. Petitioner referred to Room 104 as being a “closet” and stated that she could not stay in that room. Petitioner brought to Mr. Scott a doctor’s note dated November 23, 2011, that reflected that Petitioner was experiencing claustrophobic symptoms and could not stay in a small, closed space for 15 to 20 minutes. Upon receiving the doctor’s note, Mr. Scott notified Human Resources of the doctor’s note. Arrangements were made to provide Petitioner a larger room in another clinic. Due to the merger of the two closed clinics with the 45th Street Clinic, no room at the 45th Street Clinic, other than Room 104, was available for Petitioner’s use as an HIV counselor. A larger office was found in the Lantana Clinic. The targeted Lantana office was being used by another HIV counselor. To accommodate Petitioner, Respondent arranged to have the Lantana counselor transferred to the 45th Street Clinic and Petitioner transferred to the Lantana Clinic. Petitioner was advised of this change in location and agreed to move around December 18, 2011. She never advised or stated she could not drive to the Lantana Clinic. Petitioner called in sick on December 18, the day she was scheduled to move to the Lantana Clinic. On December 19, 2011, Petitioner reported for work at the 45th Street Clinic instead of the Lantana Clinic. Petitioner stayed at work at the 45th Street Clinic for a few hours, but left because she was not feeling well. On December 19, 2011, Petitioner suffered a stroke1/ and went on medical leave. In May 2012, Petitioner told Mr. Scott that she was ready to return to work. For legitimate business reasons, the Lantana Clinic office was no longer available. Jacqueline Lester is the equal opportunity manager for the Florida Department of Health. Ms. Lester reviews requests for reasonable accommodations with the authority to approve or reject a request. Ms. Lester first became aware of Petitioner as a result of Petitioner’s accommodation request dated December 15, 2011. Petitioner asked to stay at the 45th Street Clinic in a larger office with a furniture arrangement not requiring her to turn her neck. That request was not processed because Petitioner soon thereafter went on medical leave for an extended period. On June 19, 2012, a second request for accommodation was received from Petitioner. In this request, Petitioner asked for a reasonably-sized office, which Petitioner described as being at least 10’ x 10’, with a window. She also asked that the office be within close distance to her home in Palm Beach Gardens due to her inability to drive or sit for “any great length of time.” Petitioner also requested that she start back to work on a part-time basis. Petitioner’s request included notes from two doctors. This medical documentation did not state that Petitioner could not drive due to a neck and back disability. After reviewing the request and medical documentation, Ms. Lester, whose office is in Tallahassee, talked with Respondent’s personnel in Palm Beach County. Ms. Lester decided to accommodate Petitioner’s request. The accommodation was an office located in Respondent’s clinic in Delray Beach. The office was 10’ x 10’ with a window. Although the Delray Beach Clinic was a substantial commute from Petitioner’s home in Palm Beach Gardens, the accommodation included permission for Petitioner to stop as needed while traveling to work without being penalized for late arrival at work.2/ The accommodation also provided that Petitioner could return to full-time schedule at the Delray Beach Clinic “upon release from her medical providers.” Petitioner refused the offer of the office at the Delray Beach Clinic. On January 31, 2013, Respondent terminated Petitioner’s employment for cause based on Petitioner’s refusal to return to work. Petitioner presented no meaningful evidence that Respondent discriminated against her based on age or because of her perceived disabilities. Petitioner filed her Complaint of Discrimination with the FCHR on September 5, 2012. FCHR issued its “Notice of Determination: No Cause” and “Determination: No Cause” on May 21, 2013. Petitioner filed her Petition for Relief on June 12, 2013.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of August, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of August, 2014.
