The Issue Did Respondent, Kona Properties, LLC, d/b/a Greenleaf Assisted Living, LLC (Greenleaf), violate section 429.26(7), Florida Statutes (2019),1 and Florida Administrative Code Rule 59A-36.007(1) and, if so, what penalty should be imposed? (Count I) Did Greenleaf violate section 429.176 and 429.52(4) and (5) and rule 59A-36.010? If it did, what penalty should be imposed? (Count II) Did Greenleaf violate rule 59A-36.010(2) and, if so, what penalty should be imposed? (Count III) Should the Agency impose a survey fee upon Greenleaf pursuant to section 429.19(7)? If so, what amount of fee should be imposed? (Count IV) Did Greenleaf commit one or more Class I violations justifying revocation of its license under section 429.14(1)(e)1.? (Count V) Did Greenleaf violate the background screening requirements of sections 408.809, 429.174, and 435.06(2)(a) through (d)? If so, what penalty should be imposed? (Count VI) Did Greenleaf violate rule 59A-35.110 by not making timely adverse incident reports, and, if so, what penalty should be imposed? (Count VII)
Findings Of Fact The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of the statutes governing ALFs, codified in chapters 429, part I, and 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code Chapters 59A-35 and 59A-36. Greenleaf was, at all material times, an ALF in Kissimmee, Florida, operating under the Agency's licensing authority. Greenleaf's license authorized it to operate a 75-bed facility. Greenleaf also held a limited mental health license. This authorized it to care for residents with mental health issues, residents that many facilities will not serve. Greenleaf was required to comply with all applicable statutes and rules. There is no evidence that the Agency has ever imposed sanctions on Greenleaf or determined that it violated statutes or rules. Joann Campbell was the administrator of Greenleaf at all relevant times. Background Screening On February 4, 2019, the Agency conducted a survey of Greenleaf. As part of the survey, the Agency investigator reviewed personnel files. Investigator Pellot asked Greenleaf's Administrator, Joann Campbell, about background screening for Destiny Castleberry. She asked because the paper background screening report in Ms. Castleberry's personnel file indicated that the background screening report was "awaiting privacy policy." Ms. Campbell acknowledged that was what the document said. She went on to advise Ms. Pellot that the employee had passed the background screening 2 The parties' agreement to an extension waived the requirements of Florida Administrative Code Rule 28-106.216(1). and was eligible to serve residents. Ms. Campbell immediately printed a current background screening report showing that Ms. Castleberry had passed background screening and was eligible to serve residents. The Agency representative maintains that an employee's file must have a printed copy of a completed background screening. The Agency also maintains that Ms. Pellot reviewed a personnel file for someone named Eric and that the background screening report in his file was out of date. The Agency did not offer the file into evidence. Ms. Pellot could not remember the employee's last name. A different Agency witness said that she looked for Eric, last name unknown, in the Level II Background Screening Clearinghouse and "it told me that his background screening was not valid." The Agency did not offer a printout demonstrating the information stored in the Clearinghouse or offer persuasive evidence that the investigator even searched for the correct name. The testimony was insufficient to prove this employee did not have a current background-screening document.3 Adverse Incident Report Agency Investigator Pellot conducted a complaint survey of Greenleaf on December 30, 2019. Information from this survey is the basis of the charge that Greenleaf did not make a required adverse incident report. Ms. Pellot testified about reports she read of Resident 40 leaving Greenleaf, the staff either being unaware of his departure or thinking he left with family, him falling while not at the facility, and him being taken to a hospital emergency room. The documents she reviewed were reports by individuals who did not testify. The documents were not offered into evidence. Ms. Pellot also testified about the contents of a facility log for Resident 40. (Tr. V. I, p. 144). Her testimony about the interviews of staff and documents she reviewed is 3 The Agency did not offer an explanation why it waited until it issued the Administrative Complaint in Case No. 20-1890 on March 26, 2020, to take action on an alleged violation on February 4, 2019, over a year earlier. hearsay. The statements in the documents themselves are also hearsay.4 Further there is not a record sufficient to establish that the contents of the documents Ms. Pellot described would meet the business records hearsay exception in section 90.803(6), Florida Statutes. The Agency did not offer any of the documents, including the facility log, into evidence. An admission of Greenleaf administrator, Joann Campbell, did establish that Greenleaf had filed a "one-day" adverse incident report about Resident 40 but had not filed a "15-day" adverse incident report. § 90.803(18)(e), Fla. Stat. The admission goes only to filing of a report. It did not involve or prove any of the assertions about the facts of the incident, necessary to determine if the incident was one that had to be reported as the Agency advocates. The Agency did not offer the incident report into evidence. Ms. Campbell tried several times to submit a "15-day" adverse incident report. She was unable to because the website that the Agency requires ALFs to use to submit adverse incident reports was malfunctioning. Training Due to a tragic fire, the Agency charged Greenleaf with providing inadequate safety training. Greenleaf has a "Fire Safety Plan," which was in effect at all relevant times. It included the following section. Fire Safety Training A record of monthly fire drills is kept and logged by the Assistant Administrator. The day after each drill a staff meeting will be called and mistakes will be discussed and solutions to problems will be recommended. Training in Fire Control: In-service for staff regarding Fire Safety and Disaster Plans will be done every first Wednesday of each month on the = Use of fire extinguishers, confining and securing areas in case of fire. 4 The undersigned noted the reliance upon hearsay and the limits of its use many times during the hearing. Fire Plan: All personnel should be familiar with the plan by frequent in-service. For new employees, copies of disaster plan will be handed. Unannounced fire drills to be conducted on an ongoing basis. Greenleaf did not provide in-service training regarding Fire Safety and Disaster Plans on the first Wednesday of each month as provided in its fire safety plan. It also did not provide training in use of fire extinguishers on the first Wednesday of each month as provided in one "Annex A" to its fire safety plan. (Ex. 35-15). Similarly, it did not conduct monthly fire drills as provided by another "Annex A" to its fire safety plan. (Ex. 35-11). Greenleaf did, however, provide fire safety and emergency training to its employees. Greenleaf conducted four fire drills per shift per year for its employees, resulting in each employee participating in four drills per year. Employees, including Ms. Drybola and Ms. Terredanio, and residents, participated in the drills. The drills included review of use of a fire extinguisher. The review did not include physically using a fire extinguisher. Verbal and video instruction was provided. Use of a fire extinguisher is one of the first trainings Greenleaf provided new employees. The drills did not specifically address the circumstance of a resident literally catching fire or a resident being covered with flaming fabric. The undersigned recognizes that some employees testified, albeit inconsistently, that they had not been trained. However, other testimony of the same employees about what they did and why indicates that they had received training. For instance Ms. Drybola, when asked what she would have done based on a normal fire drill, responded by saying she would assist a resident with clothes on fire by using a wet or fireproof blanket. When asked if the day's event went like previous fire drills, she responded "no." She did not respond that there had been no fire drills. She also stated, "This time we had a real person," implying that she had been through the procedures before without "a real person." (Tr. V. 3, p. 425). This testimony indicates she had received training. Ms. Drybola also acknowledged receiving emergency training on August 26, 2019. The testimony of Mr. Harman similarly indicates that Greenleaf trained its employees. He said that he had not received training. Yet he said he received verbal instructions on how to respond to an emergency for evacuation. (Tr. V. I, p. 122). He also referred to having had a fire drill two or three months before the incident. (Tr. V. I, p. 127). Mr. Harman also referred to the fire drill training as mandatory. Ms. Terredanio's testimony also supports finding that Greenleaf trained its employees in fire safety and other emergency procedures. The fact that she could describe how to use the fire extinguisher enhanced her credibility and persuasiveness. Furthermore, Ms. Terredanio described other emergency responsibilities and procedures. (Tr. V. IV, pp. 465-468). The employees received training in emergency procedures, including fire safety procedures. The statements of some employees about not receiving training appear to be due to difficulty understanding questions, nervousness, and a lack of clarity in questions about what "training" is. The training was irregular. The Agency did not prove that the training was inadequate. It did not prove what the training consisted of or how frequently it occurred, even though Agency employees knew Greenleaf's plan provided for a training log that could have been offered into evidence. The Agency could have offered personnel files into evidence to demonstrate employees had not received training. The Agency did not do this. In addition, the Agency did not offer testimony from a witness qualified under section 90.702 to offer an opinion about what adequate emergency training would be. The Fire A tragic and fatal fire on January 25, 2020, is the genesis of Case No. 20-1469. The incident was recorded by a video camera facing down a hallway. The 15 minute, 33 second video records events occurring on one section of one hallway in a two-story building. The findings here are based on review of the video recordings and testimony from two employees who worked to save the resident. The recordings and employee testimony are the only direct and persuasive evidence of events. The fire started in room 9 on the first floor. Resident 1, a smoker with lung problems who used an oxygen concentrator, lived in Room 9. That day an oxygen concentrator was in the room. Around 1:25 on the afternoon of January 25, Erin Drybola, who served Greenleaf residents as a caregiver and provided housekeeping services to Greenleaf, heard a fire alarm sounding off. She ran toward the alarm and found a fire in room 9, where Resident 1 was. Smoke began to fill the hallways. The fire sprinklers activated and emergency lights began flashing. Ms. Drybola beckoned for help and entered the room. She found Resident 1 in her wheelchair, beside the bed, engulfed in flames. Ms. Drybola called for Marietta Terredanio to come help. Smoke quickly grew thicker. Another employee in the hall, closer to the lobby, began directing residents toward the lobby exit on the south side of the building. A worker dressed in scrubs also evacuated residents through a west side exit on the dining room end of the hall. A male staff member ran down the hall toward another area of the facility to assist residents with evacuation. Ms. Drybola ran to get a telephone and returned with it, calling as she ran. This took approximately 23 seconds. More residents hastened toward the dining room, west exit area, with encouragement from staff. Ms. Drybola re- entered the room with the fire. Resident 1's wheelchair and a lap blanket or wrap of some sort covering her lower body were burning. Ms. Drybola and Ms. Terredanio tried to extinguish the flames with a blanket, although it was not a "fire blanket." Their efforts failed. Ms. Drybola and Ms. Terredanio moved Resident 1 in the flaming wheelchair from room 9 to the hall because of the danger that the oxygen concentrator posed. At this time, approximately one minute and 27 seconds after the alarm sounded, smoke made it almost impossible to see except the area around the wheelchair illuminated by the fire. Ms. Drybola pushed the wheelchair down the hall to a more open area in front of an elevator. This kept the burning wheelchair and resident from blocking the hall. At this point, the smoke was so thick, only the resident and her wheelchair are visible in the recording. Ms. Terredanio ran to get pitchers of water from the kitchen adjacent to the dining room to pour on the flames. Ms. Drybola did too. These trips resulted in the resident being left alone for brief periods. The resident struggled to leave the wheelchair. Although the video does not have sound, Resident 1's moving lips and heaving chest indicate she was crying or screaming. Ms. Drybola made three trips, each with two pitchers of water. Ms. Terredanio made one trip. Ms. Drybola and Ms. Terredanio substantially extinguished the fire within three minutes and thirty-nine seconds of Ms. Drybola hearing the alarm. Ms. Drybola and Ms. Terredanio directed more residents down the hall toward the dining room exit. Ms. Drybola supported one resident as he walked. Three rooms down from room 9 and on the other side of the hall, a fire extinguisher hung on the wall. Ms. Drybola and Ms. Terredanio did not use the fire extinguisher on Resident 1 because they feared that the chemicals in it were dangerous to a human. Their trainings had not addressed what to do when a person is aflame. A police officer arrived at about 1:29 p.m., four minutes after the alarm sounded. At almost the same time, Ms. Drybola escorted some of the last of the residents visible from the area. The officer pulled charred, still smoking fabric from the back of Resident 1's chair and from Resident 1. He was carrying a fire extinguisher. The officer put down the fire extinguisher. Like Ms. Drybola and Ms. Terredanio, the officer elected to use pitchers of water to extinguish smoldering spots on the wheelchair. Like Ms. Drybola and Ms. Terredanio, he prioritized extinguishing the fire and briefly left Resident 1 alone while he obtained more water. After giving the officer another pitcher of water, Ms. Drybola went to a barely visible area off the lobby to escort two more residents out. Another employee identified one last resident in a room beside the elevator and, along with an officer, directed him out of the area toward the dining room exit. Firefighters did not arrive until the fire was extinguished and police officers were in charge of the scene. At the time the firefighters arrived, at least three officers were tending to Resident 1, managing the scene, and directing the activities of Greenleaf employees. The video records a horrific, chaotic scene: a burning resident struggling in a burning wheelchair and smoke so thick a person could not see past her extended arm. Ms. Drybola and Ms. Terredanio acted bravely and quickly in an effort to save Resident 1 and other residents. They made their best judgment about the risks of using a fire extinguisher, a judgment validated by the officer's election to use water, not his fire extinguisher. While the events described above played out on the first floor, Kevin Harman evacuated residents from the second floor. Mr. Harman was working as cook that afternoon. He had been trained that when the fire alarm sounded the "cook is supposed to go upstairs, going door-to-door, knocking on them, opening them, making sure everybody is out." (Tr. V. I, p. 121) As soon as he heard the alarm, that is what he did. Mr. Harman went upstairs and started evacuating residents. One resident in a wheelchair had difficulty walking. Mr. Harman started taking the resident down the stairs, step by step in his wheelchair. The resident was anxious, and Mr. Harman feared he would fall. Mr. Harman changed to helping the resident scoot down the stairs on his behind. By the time they got about halfway down the stairs, two officers arrived and took over. They supported the resident walking down the stairs and out the exit. Mr. Harman fulfilled his responsibilities and evacuated the upstairs residents quickly.5 With the exception of fire extinguisher use, Greenleaf employees, visible in the video recording complied with the facility's fire safety plan. It is also important to note that the video records activities on one segment of one hall on one floor of a two-story facility. The only evidence about activities in other parts of the facility is the testimony about Mr. Harman successfully fulfilling his responsibilities. Smoke from the fire quickly obscured visibility in the hall. Moreover, the horrific, extraordinary sight and sound of Resident 1 burning was enough to cause panic in anyone, regardless of training. To the extent there is such a thing as an ordinary emergency, this was no ordinary emergency. Greenleaf took several actions after the fire. It brought in counselors to provide long-term services to residents and employees. It dramatically increased emergency training frequency, especially for fires. Smoking Policies and Practices Greenleaf permitted residents to have and use tobacco products, including cigarettes. Rule 59A-36.007(6)(d) requires an ALF to have rules and procedures that must address the facility's policies about alcohol and tobacco use. This necessarily contemplates ALF residents smoking. Greenleaf had a tobacco policy. But it was not offered into evidence. Greenleaf prohibited smoking inside the building. Gleaning from a resident's tobacco use policy acknowledgement (Ex. 52-15), the policy designated a smoking area, 5 Mr. Harman's testimony presents a good example of the weaknesses and ambiguity of the Agency's evidence. He said that he had no emergency response training. (Tr. V. I, p. 121). Yet in the next sentence he said he "was verbally told what I was supposed to do, but there was no training connected to it." Training would encompass being "verbally told what to do." Training is teaching. No specific method is required. https://www.merriam- webster.com/dictionary/train (last visited November 15, 2020.) Even the Agency's counsel's questions acknowledge verbal instruction as training. ("[Y]ou said that the only training you received was verbal instruction … ." [Tr. V. I, p. 122]). Mr. Harman was able to describe his responsibilities in an emergency. (Tr. V. I, p. 121). And he drew on that training to care for second-floor residents. prohibited smoking in bedrooms or anywhere else inside the building, and required residents to acknowledge that smoking inside the building endangered residents, staffs, and visitors. The policy apparently also provided that a resident would be given a 45-day notice or evicted for violating the smoking policy. Until the fire, Greenleaf permitted residents to keep their cigarettes and lighters in their rooms. Greenleaf employed Jackie Shelton from sometime in June 2019 to about March 31, 2020. Two or three months after she began working at Greenleaf, Ms. Shelton observed signs of residents smoking in the facility. This was no earlier than August 2019 to no later than mid-October 2019. The signs included smelling smoke in a room and seeing cigarette butts in the garbage. She verbally reported the signs of residents smoking in the facility to Ms. Campbell, the facility administrator. Ms. Campbell told Ms. Shelton that she would "look into it." Greenleaf did not have a process for monitoring resident compliance with smoking rules. There is, however, no rule or statute that requires a process. There is also no testimony from an expert qualified under section 90.702 to offer opinions that could support a finding that an ALF should have a policy for monitoring smoking by residents. The Agency maintains that Ms. Campbell knew that Resident 1 smoked in her room. The Agency, however, did not prove this. It offered only hearsay evidence of statements allegedly made by residents to Agency employees. It did not offer testimony from any of the residents. Greenleaf did learn that Resident 2 smoked in the bathroom the day after the fire. It promptly issued a warning and a "45 day notice" of eviction to Resident 2. By the time of the hearing, Greenleaf had not evicted Resident 2 because it could not find a placement for him due to his mental health issues and the limited number of ALFs with mental health licenses. After the fire, Greenleaf changed its smoking practices. It now requires residents to give their smoking materials to staff. Greenleaf staff places the materials in plastic containers kept in the kitchen or medicine room. Residents must ask for them when they wish to smoke. Greenleaf still only permits smoking in a designated outside area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 25th day of November, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 25th day of November, 2020. COPIES FURNISHED: Shaddrick A. Haston, Esquire 3812 Coconut Palm Drive, Suite 200 Tampa, Florida 33619 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Michael Roscoe, Senior Attorney Agency for Health Care Administration 545 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Department) should impose an administrative fine on Joel S. Perez, certified operator of Allied Exterminating of Palm Beach County (Respondent), based upon allegations of violations of Chapter 482, Florida Statutes, and Chapter 10D-55, Florida Administrative Code, set forth in the administrative complaint entered herein.
Findings Of Fact On or about January 17, 1990, Joseph Parker, an expert in fumigation operations and inspection, inspected a residence located at 318 Hemlock Drive in West Palm Beach, Florida. The residence at this location was under a fumigation tent, and Parker conducted a routine inspection of this location which he noticed as he was driving by. There was no complaint which initiated this inspection. Parker's inspection of this residence identified the fact that warning signs were not located on all four sides of the structure, the business address shown on these signs of the fumigation company performing this work, Allied Exterminating of Palm Beach County, was unfamiliar to Parker, the tenting placed over this structure was not properly sealed in several places, fans were running under the tent, and hoses for injecting fumigation gas under the tent were in place. Using commonly accepted gas detection procedures, Parker also could not detect the presence of any gas under the tent. The evidence produced at hearing establishes that the tenting of this residence at 318 Hemlock Drive was deficient when observed by Parker on January 17, 1990. Specifically, a continuous ground seal was not maintained and there were significant separations in the tenting materials. The Respondent does not dispute this fact, but maintains that all tenting was secure and properly in place when the tenting was put in place the day before and the fumigation gas was injected under the tent. Respondent also maintains that fumigation gases were properly injected under this tent during the afternoon of January 16, 1990. In order to explain the deficiencies observed by Parker during his inspection, the Respondent produced credible evidence of vandalism and intentional damage done to other fumigation jobs performed by the Respondent in early 1990. This damage included cuts and slashes in tenting, as well as the removal and destruction of warning signs placed on these other premises. Because of this damage, the Respondent requested police surveillance of some of his fumigation jobs during 1990, and began a process of inspecting his jobs at night to prevent vandalism. Since mid-1990, this vandalism has ceased. Based upon the Respondent's demeanor while testifying at hearing, and the fact that he has been licensed as a certified operator for almost four years without any prior disciplinary action, it is found that Respondent's explanation of vandalism and intentional damage to his fumigation job at 318 Hemlock is credible, and that therefore, he did not negligently or improperly tent, fumigate and place warning signs on these premises. It is found, however, that the Respondent's warning signs placed on these premises included an incorrect business address. The Respondent admitted that the signs he posted on this job did not contain his company's business address, but rather, included his residence address. The Department had no record of any 24-hour notice from the Respondent concerning this fumigation job at 318 Hemlock Drive. However, the Respondent offered a credible explanation of this failure. The Respondent maintains that notice was delivered to the Department's office on the Friday prior to this job. The Monday prior to this job was a state holiday, and this job was performed on Tuesday, January 16, 1990. Credible testimony from Miguel Romero, termite inspector with Respondent, established that he hand delivered this notice to the Department's office on the Friday prior to January 16, 1990, but that it was apparently not properly filed by the Department. Due to the fact that the Department admits that at the time material to this proceeding, there were other instances of notices being lost or misfiled, and that in order to avoid such occurrences the Department has instituted a procedure of allowing notices to be filed by "fax", it is found that Respondent did not fail to provide the Department with 24-hour notice of this fumigation job. There is no dispute between the parties concerning Respondent's certification by the Department. At all times material hereto, Respondent has been the certified operator of Allied Exterminating of Palm Beach County in West Palm Beach, Florida.
Recommendation Based upon the foregoing, it is recommended that the Department enter a written warning against the Respondent by Final Order for his failure to include his business address on signs posted on the job at issue on this case. DONE AND ENTERED this 25th day of February, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The Department did not timely file Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. This is a conclusion of law rather than a proposed finding of fact. 2-3. These are preliminary and introductory matters. 4. This is a statement of position rather than a proposed finding of fact. 5-6. Rejected based upon Findings of Fact 4 and 5. Rejected based on Finding of Fact 6. Adopted in Finding of Fact 7. COPIES FURNISHED: Karen Miller, Esquire District Legal Office 111 Georgia Avenue, #317 West Palm Beach, FL 33401 Leonel R. Plasencia, Esquire 1400 Centrepark Blvd. Suite 1000 West Palm Beach, FL 33401 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda K. Harris, Acting General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether Larry Williams abandoned his position of employment with the Department?
Findings Of Fact Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida. Duval County is part of the Department's District Second. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, Larry Williams, has not abandoned his career service position with the Department. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of February, 1988. COPIES FURNISHED: Larry Williams Kaye Henderson, P.E., Secretary 617 West 44th Street Department of Transportation Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building Augustus D. Aikens, Jr. 605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, based on an Administrative Complaint that alleges that ten Class III deficiencies have persisted despite notice of the deficiencies and of the requirement that they be corrected.
Findings Of Fact The Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, is licensed to operate Leisure Living Retirement Home, 401 S.E. 9th Avenue, Mulberry, Florida, as an adult congregate living facility (ACLF) under Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 9, 1989, the day of an HRS survey of the Respondent's ACLF, the following Class III deficiencies, among others, were present: The facility did not have on its staff at all times at least one staff person with training in an approved first aid course, and there was no evidence that all staff were free of communicable disease. Daily records of supervised self- administered medications had not been kept for some residents since 1/3/89. Others showed the medications had been logged sporadically, while one medication, Inderol 10 mg, had never been logged. Because of this haphazard system, there was no way to be sure residents were receiving medications at the proper times and in the correct dosages. Of eight health assessments reviewed three did not indicate the residents to be free of communicable disease. One did not indicate whether the resident was capable of self-administering medications with supervision or assistance from staff. Appropriateness of admissions and continued residency was not based on the medical records. See subparagraph C, above. Medications were not given as prescribed. As the medications had not been logged or given according to the medication label, there is a potential for over- or under- medicating the residents, which could lead to serious health problems for the residents. All rooms where food or drink was prepared and served were not clean or in good repair as evidenced by: Live and dead cockroaches were observed on the kitchen and dining room floor and in the kitchen cabinets. There were spills inside the microwave oven. There was an accumulation of dust on top of the refrigerator and the freezer. The curtains in the dining room were torn. All potentially hazardous food was not held at safe temperatures. Liver had been left at room temperature to thaw. It could not be determined if the freezer was 0 degrees Fahrenheit or colder, as the thermometer had not been placed in the freezer until shortly before the surveyor exited the facility. The last annual inspection of the portable fire extinguisher in the main building was done December, 1987. Documentation of monthly fire drills and quality tests of smoke detectors and the fire alarm system was not available at time of survey. The facility needed to institute an effective insect control system. There were roaches crawling up the wall near the phone, creating an atmosphere ripe for the spread of disease. (These lettered subparagraphs correspond to the lettered subparagraphs in paragraph (3) of the Administrative Complaint in this case.) At the conclusions of the January 9, 1989, survey, the Respondent agreed to the following schedule for correcting each of the deficiencies listed in the subparagraphs of Finding 2, above (each lettered subparagraph below corresponds to the deficiency identified in the same lettered subparagraph of Finding 2, above): February 15, 1989 Immediate and ongoing. February 9, 1989. February 9, 1989. Immediate. January 20, 1989. January 9, 1989. January 16, 1989. February 9, 1989. Immediate. On April 27, 1989, HRS personnel returned to the Respondent's facility. They found that the deficiencies listed in the lettered subparagraphs of Finding 2, above, were not corrected, as the Respondent agreed to do. Instead, as to each deficiency, they found: Of the two staff, neither had first aid, and only one had a "no communicable disease" statement. Medications had not been logged since the morning of April 25, 1989. One of the three still did not indicate that the resident was free of communicable disease. See subparagraph C, above. One medication prescribed April 1, 1989, was never used, according to the logs. A live roach was seen crossing the kitchen counter. Breaded frozen fish was left on the counter. The stand-up freezer was 20 degrees Fahrenheit. The last documented quarterly smoke detector test was January 26, 1989, and the last documented fire drill was February 6, 1989. A live roach was seen on food left to defrost on the kitchen counter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services, enter a final order finding the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, guilty as charged in the Administrative Complaint in this case and fining her $2500. RECOMMENDED this 31st day of May, 1990 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of May, 1990.
Findings Of Fact On or about May 24, 1976, Petitioner and Respondent entered into a contract for State Project No. HRS-7525-A (hereinafter "Phase 1") for improvements to the utility system at Chattahoochee, Florida. The Phase I contract involved conversion of boilers located at that facility to fuel oil firing; additions to the system's cooling tower capacity; and repair of condenser shell and boiler stacks at the hospital. Petitioner was to be paid ;525,927 for work performed under the Phase I contract. Although Respondent was referred to as the "owner" in the Phase I contract documents, it was responsible only for contracts and the work performed thereunder. The Florida Department of Health and Rehabilitative Services is the state agency responsible for operating Florida State Hospital and is referred to in the contract documents as the "using agency". The using agency's only responsibility under the Phase I contract was to coordinate periodic utility outages with Petitioner. The firm of Tidewater Engineers, Inc. ("architect' or Tidewater") was referred to in the Phase I contract document as the Architect and/or Engineer. Tidewater engineered the Phase I contract, prepared the contract specifications, and provided general administration of the work performed under the contract. Pursuant to the provisions of the Phase I contract, Petitioner received from Respondent a Notice to Proceed with construction dated June 28, 1976. In accordance with the contract documents, Petitioner was given 210 days, or until January 23, 1977, to complete construction on the project. Petitioner actually commenced work on Phase I on June 28, 1976. During the course of construction, Petitioner was granted a 23-day extension of time by change order, with a resulting extension of the tine for completion of the project through February 15, 1977. The architect certified that Petitioner attained "substantial completion" of work, as that term is defined in the contract documents, on the project on February 23, 1977. Accordingly, "substantial completion" was accomplished eight-days beyond the date provided for in the contract, as modified by change orders approved by the architect. The Phase I contract allowed Petitioner a period of 60 days between "substantial completion" and "final completion" of construction on the project. Thus, Petitioner was scheduled to conclude work on the project no later than April 24, 1977 However, "final completion" was certified by the architect to have been accomplished by Petitioner on July 21, 1977, or 88 day's beyond the period provided in the Phase I contract. The Phase I Contract contained the following provision concerning liquidated damages for failure to attain "substantial completion" and "final completion" within the time limit agreed upon by the parties: . . . it is hereby agreed that if the project is not substantially completed, according to the definition of "sub- stantial completion" in Article 8.3 hereof, or within such further time, if any, as in accordance with the provisions of the contract documents shall be allowed for such substantial completion, the Contractor shall pay to the Owner as liquidated damages for such delay, and not as a penalty, Two Hundred dollars ($200) for each and every calendar day elapsing between the date fixed for sub- stantial completion in Article 4 hereof and the date such substantial completion shall have been fully accomplished. It is also hereby agreed that if this project is not finally completed, in accordance with the requirements of the contract documents, the Contractor shall pay to the Owner as liquidated damages for such delay, and not as a penalty, one-fourth of the rate indicated above. . . . In accordance with the foregoing provisions of the Phase I contract, and in light of the 8-day overrun in attaining "substantial completion" and the 88-day overrun in attaining "final completion", the architect, by certificate dated December 12, 1978, assessed against Petitioner $1,600 in liquidated damages for failure to timely accomplish "substantial completion", and $4,400 for overruns on "final completion" of the project, for total liquidated damages of $6,000. Petitioner contends that it should have been granted extensions of time by the architect sufficient to offset the amounts assessed as liquidated damages by virtue of its failure to-attain "substantial completion" and "final completion" within the time limits contained in the Phase I contract documents, as modified by change orders issued by the architect. The record in this proceeding establishes that additional delays in completion of construction of Phase I were attributable to an insufficient number of welders on the job site to complete construction as contemplated. Petitioner additionally asserts that adverse weather conditions and problems encountered by its subcontractors in interfacing the contract work with existing facilities caused unavoidable delay. In this regard, Section 8.3.1 of the General Conditions of the Contract for Construction provides that: If the Contractor is delayed at any time in the progress of the Work by any act or neglect of the Owner or the Archi- tect, or by any employee of either, or by any separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in transportation, unavoidable casualties or any causes beyond the Contractor's con- trol or by delay authorized by the Owner pending arbitration, or by any cause which the Architect determines may justify the delay, then the Contract Time shall be extended by Change Order for such reason- able time as the Architect may determine. Further, Section 8.3.2 of the General Conditions provides that: [a]ll claims for extension of time shall be made in writing to the Architect no more than twenty days after the occurrence of the delay; otherwise they shall be waived Petitioner did not timely submit a request for extension of time to reach "substantial completion" or "final completion" of construction on Phase I, nor is there any competent evidence in this proceeding to indicate that either Respondent or the architect agreed explicitly or by implication to waive the requirement of the contract documents that requests for extension of time be made in writing within twenty days of the occurrence giving rise to the request. On or about October 19, 1976, after receipt and evaluation of competitive bids, Petitioner and Respondent entered into a contract for State Project Number HRS-7525-B (hereinafter "Phase II") . The Phase II contract involved demolition and removal of Boiler Number 5, installation of Boiler Number 9 and accessories, and other modifications to the steam distribution system at Florida State Hospital. Petitioner was paid a total of $276,322.44 for work performed under the Phase II contract. In addition, Tidewater also served as the architect on the Phase II contract. Among the specifications contained in the Phase II contract documents as the following: Bidders are required, before submitting their proposals, to visit the site of the proposed work and completely familiar- ize themselves with the nature and extent of the work and any local conditions that may in any manner-affect the work to be performed, and the equipment, materials, and labor required. They are also required to examine carefully the drawings, speci- fications and other bidding documents, to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner affect the work. [Original emphasis]. (Joint Exhibit number 2, p. B-4). The specifications governing Phase II required Petitioner to attend a pre-construction conference before beginning work at the site, the purpose of which conference was to discuss the project under contract and prepare a program of procedure in keeping with requirements of the drawing and specifications." (Joint Exhibit number 2, p. H-1) . In addition, the Phase II specifications provided that it was Petitioner's responsibility " . . . to verify all conditions relating to the work in the field prior to proceeding with the installation." [Original emphasis]. (Joint Exhibit number 2, p. 1-1). The specifications further provided that where the work under the contract " . . . ties into existing facilities [Petitioner] shall coordinate his work with the Owner so that a minimum of downtime and disruption will occur." (Joint Exhibit number 2, p. 1-1). The section of the Phase II specifications dealing with demolition and installation of the various boilers provided that: It is imperative that the Contractor visit the jobsite prior to submitting his bid for the work. He shall carefully inspect the premises and shall include in his pro- posal such necessary contingencies as might be required by conditions at the site. Failure of the Contractor to visit the jobsite and include necessary contin- gencies shall not relieve him from complete and correct prosecution of the work. (Joint Exhibit number 2, p. 6-1). Finally, the Phase II specifications also provides that: The plant will be in operation during construction. Any outages shall be scheduled at the convenience of the Owner and at a time designated by him. When required by Owner, temporary feeds will be provided by this Contractor to keep existing equipment in operation while installing new equipment. On October 25, 1976, a conference was held at the construction site with representatives of Petitioner, Respondent, Florida State Hospital and the architect present. By letter dated October 26, 1976, Petitioner's president memorialized the discussions which occurred at this meeting as they applied to work under both Phase I and Phase 11. With respect to Phase II, this letter indicated that Petitioner's president: . . . was advised by both [the architect] and [the hospital's representative] that the hospital must have the capability to fire three boilers at anytime during this time of the year. [The architect] further advised that [Petitioner] could not start demolition of Boiler number 5 until all existing boilers are converted and checked out. [Petitioner's president] advised [the architect] that it would take [Petitioner] the minimum of six months to complete Phase II of this contract after [Petitioner] is allowed to go to work. [The architect] advised that he would grant [Petitioner] this additional time from when [Petitioner is] allowed to proceed. The evidence in this proceeding establishes that the demolition of Boiler Number 5 and the installation of Boiler Number 9 constituted the vast majority of work to be performed in Phase II. Accordingly, at all times following the meeting of October 25, 1976, Petitioner was aware that no date had been established for commencement of the major portion of the Phase II contract work, but that it would be allowed an extension of time of six months to complete Phase II of the contract after receiving notice from Respondent to proceed with demolition of Boiler Number 5. The Phase II contract provided that work to be performed thereunder would be commenced within ten calendar days after receipt of a Notice to Proceed, and that work under that section of the contract was required to be "substantially completed" within 180 calendar days of receipt of the Notice to Proceed. However, as indicated above, Petitioner was advised at the October 25, 1976 meeting that it would receive, in addition to the time periods contained in the original Phase II documents, a 180-day period of time to complete the contract work after receipt of a Notice to Proceed with demolition of Boiler Number 5. Petitioner received from Respondent a Notice to Proceed, dated November 4, 1976, establishing the starting date for the Phase II contract time as November 15, 1976. In accordance with the Phase II contract documents, the Notice to Proceed also established a "substantial completion" date of May 13, 1977. These dates were established subject to change consistent with the agreement between the parties reached at the October 25, 1976 pre-construction conference. The record clearly establishes that this Notice to Proceed was intended to allow Petitioner to begin that portion of the Phase II work not associated with demolition of Boiler Number 5 and installation of Boiler Number 9. A second conference was held at the job site on November 15, 1976, which resulted in a pre-construction conference report signed by representatives of Respondent, Florida State Hospital, the architect and Petitioner. This report indicated that work on Phase II of the project was ". . . being delayed because of work on Phase I that the " . . . engineer agrees with delay on Phase II and suggests [Change Order] to extend time . .", and that a " . . . Change Order [is] to be issued when boiler is received and project starts." (Respondent's Exhibit number 1). In reliance on the Notice to Proceed dated November 15, 1976, Petitioner apparently proceeded with some of the work called for under the contract, with the exception of work connected with the demolition of Boiler Number 5 and the installation of Boiler Number 9. The understanding between the parties concerning the starting date for work on the two boilers was again memorialized in a letter from the architect to Petitioner dated December 7, 1976. That letter provided that: Due to the circumstances involved while converting the existing boilers No. 6, 7 & 8 the institution has requested the use of boiler No. 5 during the conversion shut down. This boiler will remain in use until the new fuel oil pumping system is in operation serving the existing boilers No. 6, 7 and 3. Since you have been notified to proceed with the Phase II contract and your con- strution time has begun, we will give you 180 calendar days from the time you are allowed to begin demolition of No. 5 boiler. Please advise your subcontractors and suppliers of this change so they can arrange their schedules accordingly. It appears that the work inside the boiler room can begin about January 15, 1977. The January 15, 1977 anticipated starting date referred to in the aforementioned letter apparently resulted from an estimate of the anticipated date of substantial completion of work on Phase I, which was scheduled for January 2.3, 1977. However, as a result of Change Orders issued on the Phase I project and construction overruns by Petitioner on the Phase I work, substantial completion was not reached on Phase I until February 23, 1977. As a result, Respondent did not issue a Notice to Proceed with demolition of Boiler Number 5 until March 28, 1977. This Notice to Proceed established March 28, 1977 as the contract commencement time, and further established September 23, 1977 as the required date for substantial completion. This second Notice to Proceed also contained a notation that these new dates were being established because " . . . Project HRS-7525-A, Improvements to Utilities System, Phase I, was behind schedule, therefore the Using Agency could not shut dawn the existing boiler which is to be renovated under the contract." (Petitioner's Exhibit number 22). In accordance with the earlier understanding by the parties reached on October 25, 1976, Petitioner was given a period of 180 days from March 28, 1977, in which to reach "substantial completion" of work on the project. In addition, the architect granted a 32-day extension by Change Order during the course of construction work. As a result, the date on which substantial completion was to have been reached by Petitioner was October 25, 1977. However, the architect certified that Petitioner attained substantial completion of work on the project on November 11, 1977, which constituted a 17-day overrun of the required substantial completion date. The Phase II contract documents allowed Petitioner a period of sixty days from the date established for substantial completion to reach final completion of construction on the project. Accordingly, final completion of the project was scheduled to occur no later than January 10, 1978. However, final completion of work on the Phase II contract was certified by the architect to have been accomplished by Petitioner on February 16, 1978, 37 days beyond the date required by the contract documents. The Phase II contract documents contained a provision that for each day of overrun in reaching substantial completion, the Petitioner would be assessed one hundred dollars as liquidated damages. In addition, the contract provided far a twenty-five dollar per day assessment of liquidated damages for each day of overrun in reaching final completion of the project. Accordingly, Petitioner was assessed $1,700 in liquidated damages for overruns on reaching substantial completion, and $925 for overruns in obtaining final completion. Petitioner did not request an extension of time in accordance with the Phase II contract documents to offset the time overruns for which it was assessed liquidated damages. In addition, as with the Phase I contract, nothing in the record of this proceeding establishes that Respondent or its representatives in any way waived the notice provisions of the Phase II contract documents with regard to requests for extensions of time. Finally, the coordination problems encountered by Petitioner with materialmen which Petitioner asserts as justification for the overruns on the Phase II contract, were among the matters which the contract documents required Petitioner to take into account in formulating its bid and cannot, at this late date, constitute an excuse for failure to comply with the time limits contained in the contract. Periodic payments under both the Phase I and the Phase II contracts were scheduled to be made to Petitioner on a monthly basis depending upon progress in construction. The contract allowed Respondent to withhold 10 percent from the amount of each of the monthly progress payments as retainage. The contract documents also provided that upon substantial completion of the contract work, the 10 percent retainage figure could be reduced to 5 percent, in the discretion of the architect, with the remaining 5 percent constituting the final payment to be made upon final completion. All periodic payments were to be made to Petitioner upon approval by the architect. Payment in the amount of $32,169.39 reducing Phase I retention from 10 percent to 5 percent was made on February 9, 1978, almost one year after the February 23, 1977, date certified by the architect for substantial completion on Phase I. Payment reducing retention on Phase II from 10 percent to 5 percent, in the amount of $34,730.70, was made on February 3, 1978, approximately three months after the November 11, 1977, certified date for substantial completion of construction on Phase II. Final payment of all retention on Phase I, which payment amounted to $20,451.50, was made on March 19, 1979, approximately 20 months after the July 21, 1977 certificate of final completion Issued by the architect. Final payment of all retention on Phase II, in the amount of $11,389.14, was made on May 29, 1979, approximately 15 months after the February 16, 1978, final completion date certified by the architect. Petitioner claims that it is entitled to an award of interest on those parts of the contract sums remaining unpaid from the respective dates of substantial and final completion of the two projects until retainage payments were actually received. In this regard, the General Conditions of the contract documents contained a clause that provided that " . . [a]ny monies not paid when due to either party under this Contract shall bear interest at the legal rate in force at the place of the Project." (Joint Exhibit number 5 p. 12) However, in the specifications for both the Phase I and Phase II contracts there appears a clause which deletes the above-quoted interest provision in its entirety. It is, therefore, specifically found that the intent of the parties in deleting that portion of the contract documents providing for the payment of interest on past-due monies owing under the contracts was to relieve either- party from any liability for interest on such past-due amounts. Accordingly, Petitioner's claim for an award of interest on late payments is precluded by virtue of the provisions of both the Phase I and Phase II contract documents. Finally, Petitioner claims entitlement to an increase in the contract sum on the Phase II contract because of its inability to proceed with demolition of Boiler Number 5 and installation of Boiler Number 9 until March 28, 1977. Petitioner calculates its claim for an increase in the contract sum based upon additional overhead expenses attributable to the lapse of time between the initial Notice to Proceed issued on November 15, 1976 and the second Notice to Proceed of March 28, 1977. In essence, Petitioner argues that there was nothing in any of the Phase II contract documents which would have put it on notice that construction on Phase II could not have commenced shortly after the award of the contract, and that it prepared its bid in reasonable reliance on its ability to begin construction shortly after the letting of the contract. Because of the using agency's need to keep Boiler Number 5 operating until completion of work on Phase I, and the additional requirement that a coal chute at the hospital be left unblocked to facilitate unloading of fuel, Petitioner was not allowed to begin demolition of Boiler Number 5 until 134 days after issuance of the initial Notice to Proceed. As indicated earlier in this Recommended Order, the Phase II contract documents required Petitioner to visit the site of the proposed work and completely familiarize [itself] with the nature and extent of the work and any local conditions that may in any manner affect the work to be performed, and the equipment, materials, and labor required . . . [Original emphasis]. (Joint Exhibit number 2, p. B-4). The Phase II contract documents also required that "[w]here [Petitioner] ties into existing facilities, [it] shall coordinate its work with the Owner, so that a minimum of downtime and disruption will occur." (Joint Exhibit number 2, p. 1-1). Finally, the contract documents contained a provision that: . . . If [Petitioner] is delayed at any time in the progress of the Work . . . by any cause which the Architect determines may justify the delay, then the Contract Time shall be extended by Change Order for such reasonable time as the architect may deter- mine. [Emphasis added]. (Joint Exhibit number 5, p. 12). There is no provision in any of the Phase II contract documents setting a specific starting time for work on the project. Instead, the contract documents simply provide that "[t]he date of commencement of the Work is the date established in a notice to proceed (Joint Exhibit number 5, p. 12). In this regard, Petitioner knew at all times on and after October 25, 1976, that there would be a substantial delay in commencement of work on the demolition of Boiler Number 5. In accordance with the terms of the contract documents, Petitioner was advised on October 25, 1976, and at numerous times thereafter, that it would be granted the full 180-day time period to complete the Phase II work after receipt of a notice to proceed with demolition of Boiler Number 5. The record establishes that Petitioner acquiesced in this arrangement, and that it did not request an increase in the contract sum within twenty days of the October 25, 1976, meeting as it was required to do in the contract documents. (Joint Exhibit number 5, p. 17). Finally, delays in commencement of work under the Phase II contract, unlike changes in or stoppage of the work once it has been started, cannot form the basis for an award of delay damages. Under the Phase II contract, delays in initial commencement of the work arising prior to the issuance of a notice to proceed can be redressed only by extension of the contract time. Accordingly, expenses incurred in preparation to perform work under the contract prior to the issuance of a notice to proceed, absent some contrary agreement, are undertaken at the contractor's risk. This is especially so under the facts of this case where Petitioner knew of the likelihood of delay on work on Phase II well in advance of the issuance of either of the notices to proceed, and where Petitioner itself, by virtue of its delinquencies in performing work under the Phase I contract, thereby contributed to the delay in commencing work on Phase II. Both Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those proposed findings have not been adopted herein, they have been rejected as either being irrelevant to the issues presented or as not having been supported by the evidence.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of Petitioner's gender and national origin by engaging in the adverse employment actions alleged in the Charge Of Discrimination and Petition For Relief.
Findings Of Fact Respondent is engaged in the business of manufacturing and selling mobile homes. Respondent operates in several locations in the state with a substantial number of employees. Respondent maintains a progressive discipline policy. The policy progresses from counseling or verbal reprimand, to written reprimand, to suspension, and then to termination. Respondent prohibits discrimination, including that based on national origin and gender. The prohibition against discrimination and the progressive discipline policy, are published in an employee handbook and posted by the time clock at each plant. Petitioner is female and Vietnamese. Respondent first employed Petitioner in 1982. Since then, Petitioner has worked in the Molding Department doing trim work (a "molder"). Petitioner has not applied for any promotions with Respondent. Petitioner has not lost any pay as a result of the alleged discriminatory conduct by Respondent. Petitioner is paid comparably with other employees in her department. Mr. Matt Minter, Respondent's Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Minter has never taken any employment action against Petitioner on the basis of Petitioner's gender or national origin. Mr. Larry Godair, Respondent's Assistant Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Godair has never taken any employment action against Petitioner because of her gender or national origin. None of Respondent's other employees have ever made a specific reference to Petitioner's national origin. None of those employees have taken any employment action against Petitioner because of her gender or national origin. Petitioner fell at work and bruised her knee on November 16, 1996. Respondent completed an accident report for the injury. Due to various injuries, Respondent assigned Petitioner to light duty at different times during her employment. The light duties included filing, painting, and cleaning up the parking lot. Respondent assigns the same light duty work to both male and female employees. Mr. Lydon Allred, Respondent's Utility Supervisor, gave Petitioner a written reprimand for bringing a camera to work. The reprimand was not issued because of Petitioner's gender or national origin. Time-out Requirements Respondent prescribes the time in which each day's quota of finished goods should be out the factory door and ready for market ("time-out requirements"). Personnel who fail to meet time- out requirements without good cause are subject to discipline. Mr. Allred issued two separate written reprimands to Petitioner because she failed to meet her time-out requirements without good cause. Mr. Allred did not issue either reprimand because of Petitioner's gender or national origin. Mr. Allred issued written reprimands to other members of the molding department. At the time, all other members of the molding department were female and U.S. citizens. Prior to the written reprimands, Mr. Allred issued verbal warnings to Petitioner and the other members of her department for failure to meet time- out requirements without good cause. Ms. Patricia Pipkin is the Assistant Supervisor for Respondent's molding department. She has been Petitioner's direct supervisor for several years. Ms. Pipkin issued two written warnings to Petitioner for failure to meet her time-out requirements without good cause. On both occasions, Ms. Pipkin issued written warnings to other employees in the molding department. The other employees were female and U.S. citizens. Ms. Pipkin did not discipline Petitioner because of her gender or national origin. Ms. Pipkin has never heard Mr. Minter threaten to terminate Petitioner or to make an example of her. Mr. Minter has never engaged in either act. Light Duty Assignments Petitioner had multiple accidents on the job that required her to perform light duties consistent with the restrictions prescribed by her health care provider. Respondent gave Petitioner light duties including office work and clean up such as picking up trash, nuts, and bolts in the parking lot. Mr. Godair assigned light duties to employees from April, 1994, through July, 1995. Light duties routinely included office work and clean up in and around the plant. Clean up included picking up nuts and bolts in the parking lot and painting. Mr. Godair did not consider the national origin or gender of employees when assigning light duties. The only criteria Mr. Godair considered were the restrictions placed on each employee by his or her health care provider. Mr. Godair sometimes contacted the treating physician for clarification and further direction before assigning light duty tasks. On one occasion, Mr. Godair clarified Petitioner's light duty restrictions with her treating physician. Mr. Godair's clarification of light duty restrictions for Petitioner was not motivated by Petitioner's national origin or gender. Petitioner never complained to Mr. Godair that she was being treated differently from other employees in connection with her light duty assignments. Respondent did not consider Petitioner's national origin or gender in assigning light duties to Petitioner. Respondent did not treat Petitioner differently from other employees with similar medical restrictions. Mr. Glen Combs is male, a U.S. citizen, and supervises the carpet department. He was restricted to light duty on at least one occasion. Respondent required Mr. Combs to pick up trash in the parking lot including screws, nuts and bolts, and paper. Respondent also required Mr. Combs to paint indoor and outdoor areas of the Auburndale plant. Mr. Steven Wade is male, a U.S. citizen, and a cab setter for Respondent. He was restricted to light duty on two occasions. Mr. Wade's light duty assignments included picking-up screws and painting lines in the parking lot. Mr. Wade also painted a number of other areas in the Auburndale plant including interior walls, racks, and the floor. Mr. Wade's light duty assignments sometimes required him to use a latter. Mr. Robert Peterson is male and a U.S. citizen. He is a former employee of Respondent and was restricted to light duty on one occasion during his employment. Mr. Peterson's light duty assignments included front office tasks and yard duties. Yard duties included picking up debris and metal objects in the parking lot. Cameras At Work Respondent's policies and procedures prohibit cameras at work without the permission of management. Appendix D of the employee handbook in Plant Work Rule No. 17 prohibits, ". . . cameras on the premises without authorization from management." The purpose of the prohibition against cameras is to protect production processes that Respondent believes provide a competitive advantage. All employees, including Petitioner, receive a copy of the employee handbook, including Appendix D. Respondent maintains a model home center in Plant City, Florida. On one occasion, Respondent instructed Petitioner and Ms. Evelyn Scott to set up a model home at the Plant City facility. Ms. Scott is a molder who works with Petitioner. She is female and a U.S. citizen. Petitioner took a camera to the Plant City facility and took pictures without the permission of management. The action violated Respondent's policy and procedures. Mr. Allred gave Petitioner a written warning for bringing the camera to work. Mr. Allred gave Ms. Scott a verbal warning and counseled her because she did not actually bring the camera to work. Neither Petitioner nor Ms. Scott photographed any production process that gives Respondent a competitive advantage. Mr. Allred has worked for Respondent for approximately 16 years. During that time, Mr. Allred has been Petitioner's immediate supervisor as the Assistant Supervisor and Supervisor of the Molding Department. Mr. Allred never took any employment action against Petitioner because of her gender or national origin. Lost Tools Respondent owns the tools that employees use in the performance of their duties. Respondent requires employees who lose tools to pay for the tools. Petitioner lost a tool on the job, and Respondent required her to pay for it. Respondent did not require Petitioner to pay for the tool because of her gender or national origin. Other employees required to pay for lost tools include Eric Mitchell, Chris Spring, Mike Church, Pat Gay, David Scott, Bob Barker, Rosa Linda, Keith Johnson, Scott Pollard, Randall Huggins, Robert Allen, and Eugene West. Those individuals are male and U.S. citizens except for Ms. Linda who is female Hispanic. Multiple Accidents Respondent applies its progressive discipline policy to employees involved in multiple accidents. A safety committee composed of employees from each area of a plant investigates each accident. The committee prepares an accident investigation report and recommends appropriate disciplinary action, if any. Petitioner has had multiple accidents on the job. When Respondent began applying its progressive discipline policy to employees with multiple accidents, Mr. Minter met with Petitioner because he was concerned about Petitioner's accident history and wanted to make sure she understood the new policy as well as existing safety policies, procedures, and rules. Mr. Minter did not give Petitioner a verbal warning concerning her accident history. He did not threaten Petitioner's job if she had one more accident or threaten to make an example of Petitioner. Mr. Minter did not take any employment action against Petitioner because of her gender or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of her gender or national origin. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Tanya Baxla, pro se 2204 Ivey Lane Lakeland, Florida 33801 Charles A. Powell IV, Esquire Zinober and McCrea, P.A. 201 East Kennedy Boulevard, Suite 850 Tampa, Florida 33602
Findings Of Fact Respondent owns and operates a motel in Ft. Myers known as the Shores Motor Lodge. The motel is on the northwest corner of the intersection of Cypress Street and State Road 739 (US Business 41). In the vicinity of the motel, State Road 739 is busy with a projected weekday traffic volume of 57,000 vehicles. The posted speed limit is 45 miles per hour. Petitioner is in the process of widening State Road 739 in the area from four lanes to seven lanes. Cypress Street is a short, residential street. The intersection of State Road 739 and Cypress Street is not at a 90 degree angle. Instead, a vehicle turning right onto Cypress Street must execute a sharp turn of about 135 degrees. The motel is an established property. Guests visiting the motel office have diagonally parked in front of the motel on the State right-of-way separating the motel from State Road 739. The road-widening project consumes nearly all of the right-of- way with road surface and a sidewalk, leaving no room for vehicles to park in front of the motel on the remaining right- of-way. The motel occupies about 50 feet of frontage. On the other side of the motel, to the north, there is a driveway serving an adjacent church. To accommodate Respondent's guests, Petitioner modified the original design to shorten the curb along Cypress Street so that motel guests may turn onto Cypress Street, park alongside the road beside the motel, and walk a few feet to the front office. Respondent's solution is to obtain a driveway, cutting at a 65 degree angle across a wide expanse of the sidewalk and beginning at the southern edge of the church's driveway. This driveway would run only a sort distance at this angle before requiring a sudden turn to the right in order to negotiate a narrow set of supports supporting the motel canopy under which the vehicles must pass. The driveway would run only eight feet from the front door to the office. Respondent's solution is unsafe to pedestrians on the sidewalk and the motel property. It is likely that vehicle operators leaving State Road 739 at a gentle angle would not anticipate the tight passageway that they must navigate, while turning their vehicle further to the right in dangerously close proximity to the front door of the office. Pedestrians on the sidewalk are also endangered by vehicles traveling at high speeds veering off the highway to cross a wide expanse of sidewalk so near an intersection and another driveway. Respondent's solution is unsafe to other vehicles on Cypress Street, State Road 739, and the motel property. Vehicles parked on the proposed driveway block site lines for drivers seeking to exit Cypress Street and are in danger of being rear- ended by vehicles exiting State Road 739 too fast. Likewise, the risk of rear-end collisions on State Road 739 is greater when drivers turning into the motel suddenly notice the narrow passageway that they must navigate or an obstruction in their path. On the other hand, Petitioner's proposal is safe and mandated by operational considerations resulting from the road widening project. There remains reasonable and safe access for motel guests, many of whom are long-term residents who have little need to visit the office.
Recommendation It is hereby RECOMMENDED that the Department of Transportation enter a final order dismissing Respondent's challenge. ENTERED on May 9th, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 9th, 1995. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 ATTN: Eleanor F. Turner, M.S. 58 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Paul Sexton Chief, Administrative Law Department of Transportation Haydon Burns Bldg., MS 58 605 Suwannee St. Tallahassee, FL 32399-0458 Wayne RinkenbacK Shores Motor Lodge 7243 Winkler Rd. Ft. Myers 33919
Findings Of Fact The certified residential contractors license number CRC001528 issued to Hampton is currently inactive. On June 21, 1977, Jay Hampton Construction, Inc. , entered into a contract with Francis Merceret to enclose a carport for a total price of $7,500.00. Hampton had made application to change his contractors license to a corporate license but since the paper work was not complete, such request was never processed. The work done on the Merceret residence was done under Hampton's individual license. Construction on the project was completed in August, 1977, and Merceret paid the full amount of the contract price to representatives of Jay Hampton Construction, Inc. There are outstanding bills in the amount of $183.76 due to Best Iron Works and $273.30 due to M. P. S. Industries, which monies are owed for work done or materials furnished for the Merceret enclosed carport. Hampton satisfied another claim of lien filed by Cling Electric, Inc., for unpaid bills resulting from the work on the Merceret residence. Merceret made a total of three payments to Jay Hampton Construction, Inc. The first two payments were made to the company. After that time, Hampton called Merceret and requested that the third and final payment be made directly to him because of problems Hampton was having with his partner. Hampton agreed to put the money in escrow until the problems were worked out and lienors were satisfied. Notwithstanding these precautionary instructions, Merceret made the final payment to one Murrary Lash, who was associated with Hampton. Hampton never saw the money again nor was it properly allocated to subcontractors or material men who had not been paid. This occurred, notwithstanding Hampton's request that Merceret not pay anyone until all releases were obtained.
