Findings Of Fact Petitioner is employed as a full-time professional firefighter by the City of Tampa Fire Department. His primary responsibility is the prevention and extinguishment of fires, the protection and saving of life and property, and the enforcement of municipal, county and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires. Petitioner received an associate in arts degree in Business Administration in May 1989 from Hillsborough Community College. In addition, he has earned 90 hours credit towards an associate in science degree from the same accredited post secondary institution. Petitioner's permanent academic record at Hillsborough Community College reveals he has successfully completed the following fire-related courses: SUMMER 1983 SEMESTER CREDITS ENS 1119 EMT AMBULANCE 5 EMS 1119 EMT AMBULANCE LAB 1 FALL 1986 SEMESTER CREDITS FFP 2601 FIRE APPARATUS PRA 3 FFP 1600 FIRE APPARATUS EQ 3 FALL 1990 SEMESTER CREDITS FFP 2420 F/F TACTICS & STRA 3 FFP 2660 RESCUE PRACTICES 3 FFP 2110 FIRE COMPANY MAN AG 3 Although Petitioner has 21 semester hours that the Department has agreed are fire related courses, 9 of these hours were credited to him after his associate in arts degree was conferred upon him in May of 1989. In order for a firefighter to be eligible for supplemental compensation related to an associate degree, he or she must have at least 18 semester hours that are fire related and are part of the firefighter's studies for the degree. Petitioner had only 12 semesters of fire related studies prior to the award of his degree. In order for Petitioner to receive eligibility credits for the full 21 semester hours in the Firefighter's Supplemental Compensation Program, he would have to acquire his second associate degree from Hillsborough Community College.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner should be denied eligibility for the Firefighters Supplemental Compensation Program as he did not complete at least 18 semester hours of fire related courses prior to receiving his award of an associate of arts degree. DONE and ENTERED this 6th day of October, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY 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 6th day of October, 1992. APPENDIX The Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See Preliminary Statement. Accepted. See HO #4 and #5. COPIES FURNISHED: Mark B. Maxey 6909 N. Glen Avenue Tampa, FL 33614 William C. Childers, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Bill O'Neil Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, FL 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact On December 17, 1981, the Respondent Department of Transportation published an advertisement announcing a vacant position for a welder at its Orlando Maintenance Yard. This advertisement specified that applicants must possess either a welder's certificate or have at least one year's welding experience. Applicants for the position had to be certified as eligible prior to the date of their employment interview. The closing date of this initial advertisement for the welder's position was established as January 5, 1982. The Department did not receive any applications for this position prior to the closing date of January 5, 1982. The Petitioner first heard about the welder's position from a friend who was working for the Department. The Petitioner went to the Orlando Maintenance Yard and read about the position on the shop bulletin board. After obtaining a chauffeur's license as required by the position, the Petitioner filed an application for the position on January 10, 1982, after the closing date for the advertisement. On January 19, 1982, the Petitioner was certified as eligible for the position of welder. On January 27, 1982, the Department readvertised the position, establishing a closing date of February 10, 1982. This advertisement was identical to the initial advertisement published on December 17, 1981. Although the Petitioner's application was received between the closing date of the first advertisement and the initiation of the second advertisement, his application was considered for the welder's position. The Petitioner was interviewed by C. P. Bronson, Sid Bronson, and W. O. Downs between January 19 and February 10, 1982. Petitioner, a black male, had the required welder's certificate and 14 years' experience as a welder. The Petitioner could execute drawings and designs, do layouts, and cut metal, which he could weld into a finished product. The welder's position had become vacant due to the promotion of the incumbent in August or September 1981. Shortly after the incumbent was promoted, C. P. Bronson spoke with John Mierstein, a white male employed at the Orlando Maintenance Yard as a mechanic, and urged Mierstein to apply for the welder's position. In September 1981, Mierstein filed an application in an attempt to become certified as a welder. Mierstein was notified that he was not qualified for a position as a welder because of lack of experience. Mierstein reapplied and, following the advice of C. P. and Sid Bronson, listed among his experiences "all-purpose welder." Mierstein was again notified that he was not qualified for the position. Mierstein had been employed by the Department of Transportation as a mechanic on July 7, 1981. Prior to that time, Mierstein had worked for eight years for the Orange County School Board. For three years, while he was with the School Board, Mierstein repaired playground equipment and gates. Welding duties were approximately 60 percent of his work time. While working for the Department, Mierstein worked with heavy equipment and mowing equipment. His welding duties were approximately 50 percent of his time. In addition, Mierstein's other duties involved rebuilding transmissions and engines on this equipment. While with the Department, Mierstein's welding duties had increased from 40 percent of the time to 60-to-70 percent of the time after the incumbent left the position of welder. The Bronsons spoke separately with Mierstein about the welding position, but, because of their knowledge of his welding work and their familiarity with his work habits, they did not conduct a formal interview. The Petitioner was interviewed by W. O. Downs, Sid Bronson, and C. P. Bronson. After the interview, Downs and the Bronsons met together and collectively arrived at a numerical rating of the Petitioner's scores in each of the nine categories reflected on the Department's Applicant Selection Guide. These categories included qualifying minimum training and experience, communication skills, motivation and interest in position, interpersonal relationships, appearance, knowledge and skills of occupational subject, education, planning and organizational skills, and ability to accomplish assignments. W. O. Downs never participated in an interview of Mierstein. Mierstein's scores on the Applicant Selection Guide were arrived at between C. P. and Sid Bronson; therefore, although the Petitioner's Exhibit 2-A indicates that all three individuals interviewed Mierstein, the evidence reflects that Mierstein was never formally interviewed by W. O. Downs. Pete Bronson, shop foreman of the Orlando Maintenance Yard, regularly encouraged his employees to seek promotion. He also assisted his employees in filling out their applications and obtaining eligibility for promotion. In the case of Mierstein, Pete Bronson spoke with a supervisor in the Orange County School Board maintenance system about Mierstein's work as a welder, specifically the amount of time Mierstein spent welding in his position with the School Board. This conversation took place before Mierstein filed his second application. This information was reported to John Dollar, former maintenance engineer for the Department of Transportation. . . . Two days prior to Mierstein's promotion to the position in question on February 10, 1982, Dollar telephoned the Department's district personnel director, Susan Bickley to obtain a certification of eligibility for Mierstein. Ms. Bickley telephonically approved Mierstein's training and experience based upon Dollar's representation that Mierstein had spent 60 percent of his time with the School Board performing welding duties. Based upon Mierstein's performance with the School Board for over three years and with the Department of Transportation for seven months, Ms. Bickley determined that Mierstein had over a year's experience in welding and therefore was eligible for the position. Ms. Bickley was authorized to certify applications for noncompetitive positions. In addition to his duties as a welder, Mierstein had experience in mechanical repairs upon the various pieces of equipment used by the Department and maintained at the shop. Ms. Bickley also provided certain information concerning the Department's hiring practices. The Department has a conciliation agreement with the FHWA to hire 50 percent minority employees in all new hiring situations. In fiscal year 1981-82, 50 percent of all new hires were minorities, and in fiscal year 1982-83, 55 percent were minorities (not including female employees). The Department had an Upward Mobility Program as set forth in Rule 14- 17.06, Florida Administrative Code. This policy provided that the Department should give priority to Department employees when they applied for a position. The Petitioner was not hired as a result of Mierstein's promotion into the vacant position.
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 denying the Petition for Relief from an Unlawful Employment Practice and dismissing Petitioner's complaint of discrimination. DONE and RECOMMENDED this 6th day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 6th day of December, 1983. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
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.
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
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 Whether the Petitioner's application for a Class 09 04 permit should be approved.
Findings Of Fact On or about August 16, 1999, the Petitioner, Joseph M. Toth, executed an application for a Class 09 04 permit. The application represented that the Petitioner had previously possessed a permit, number 788995000196, and worked for a company identified as Fire Tech Equipment (Fire Tech). A review of the agency's record determined Fire Tech did not possess a valid license subsequent to December 31, 1998. Any work performed by that company subsequent to that time would have been without proper authorization from the Department. All companies in the business of servicing, repairing, recharging, testing, marking, inspecting, or installing any fire extinguisher or pre-engineered system in this state must possess a valid license. All individuals employed by a licensed business must hold a valid permit in order to perform such work. The Petitioner was the only "Joe" employed by Fire Tech subsequent to December 31, 1998. An individual using the Petitioner's expired permit number (and who was identified as "Joe") performed activities requiring licensure for Fire Tech subsequent to December 31, 1998. It is an individual's responsibility to ascertain the status of a permit and to timely renew. The Department does not question the expiration of permits if the holder does not timely renew it. As a former permit holder (and the former qualifier for a licensed business) the Petitioner knew or should have known his responsibilities regarding permit renewal. It is undisputed that Fire Tech continued to perform activities requiring licensure after December 31, 1998, and that the Petitioner was employed by the company. A pending criminal investigation of Fire Tech's unlicensed activities encompasses at least eighty (80) instances of jobs performed without proper authorization. Further, some of the jobs were performed so inexpertly that the client incurred additional expenses in order to correct the work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order denying the Petitioner's permit application. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000. COPIES FURNISHED: Elenita Gomez, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph M. Toth 2420 Hayes Street Hollywood, Florida 33020 Honorable Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0307
The Issue The issue presented is whether the Department committed an unlawful employment practice by terminating Petitioner's employment due to her age or her sex or by retaliating against Petitioner.
Findings Of Fact Fred Chaplin supervises the fire protection specialists (fire inspectors) for the southeast region of the Bureau of Fire Prevention, Division of State Fire Marshal, Department of Financial Services. The headquarters for the southeast region is in West Palm Beach, with a field office in Plantation. For approximately five months there had been a vacant fire inspector position in the southeast region, and Ashley Caron, a fire protection specialist, was covering all of the counties in the southeast region during that time. She worked out of the Plantation field office where Amy Peebles was the administrative assistant. Michael Long, another fire protection specialist, worked out of the West Palm Beach office. He, like Ashley Caron, was responsible for inspecting state-owned and state-leased buildings and new construction. He was also responsible for all fire alarms in the southeast region whether they were in new construction or in existing buildings. He investigated fire alarm systems when he received complaints from outside contractors or other fire inspectors. When Petitioner Andrea Spainhour interviewed for the vacant position in the southeast region, she was interviewed by Caron, Long, and Joe Furiatto from the Department's Tallahassee personnel office. Prior to her interview, Long had talked with Peebles about whether they should re-post the vacancy since there were only two candidates. He erroneously thought there had to be a minimum of three applicants for a vacancy in order to fill it. Long, Caron, and Furiatto were impressed with Petitioner during her interview. She had an excellent background and extensive experience. The three interviewers rated Petitioner, a 50-year-old female, as superior to the other applicant, a younger male, and recommended that she be hired. When Petitioner accepted the offer of employment, Long, Caron, Peebles, and Chaplin were all excited that Petitioner would be working with them. Petitioner's first day of work was May 7, 2001. She reported to the Plantation office where Chaplin spent time with her in orientation over the next several days. He advised Petitioner that Caron would train her during May and June and that Petitioner would become responsible for the inspections in Miami-Dade County. He further advised Petitioner, as he had before she began work, that she was a probationary employee and that the Legislature was considering "privatizing" fire protection specialists. He further advised Petitioner that hers was a job "out in the field," but that she was expected to come into the office to pick up phone messages and mail, turn in inspection reports, and sign documents. He told Petitioner the guideline was that it would take approximately eight hours a week to take care of duties in the office. Amy Peebles assisted Petitioner by answering her questions, showing her how to use her Nextel telephone and the computer, and creating forms on the computer so that Petitioner could fill them out and e-mail them to her when Petitioner was out of the office. Caron also assisted Petitioner by answering questions and showing her how to fill out forms. Long told Petitioner to call on him if she had any questions. Everyone tried to make Petitioner feel part of "the team." On May 10 Petitioner sent Chaplin an e-mail saying that Caron and Peebles had given her a plant for her office and that she already felt like part of the family. Although not mentioned in the e-mail, Caron also gave Petitioner some shirts like Caron and Long wore when they made inspections identifying Petitioner as a fire inspector so she would be recognized as a member of the fire inspectors team. Caron also gave Petitioner a mapping program of Miami-Dade County that Caron had purchased to assist Petitioner in becoming familiar with the locations of facilities she would be inspecting. When Chaplin advised Long and Caron by e-mail that they had been complimented for their professionalism by the construction administrator at the Department of Juvenile Justice (DJJ), Long immediately advised Chaplin by e-mail that Petitioner was also present at the referenced meeting and had acted professionally and been an asset to the inspection team. Chaplin forwarded those e-mails to Petitioner to let her know that Long had included her in the compliment. When Petitioner began making inspections, she did not always submit the proper forms to Peebles or fill them out properly so that Peebles could send the required letters to those responsible for the inspected facilities. Peebles reported this problem to Chaplin. Petitioner also made mistakes on her vehicle logs that Chaplin corrected for her before forwarding them to Tallahassee. On June 12, Caron and Long car-pooled down to Miami- Dade County to attend a meeting at Florida International University (FIU). After the meeting, Long, who was responsible for fire alarm systems in the region, took the opportunity of being in Miami-Dade to evaluate the fire alarm system at the DJJ, which was located close to FIU, in order to ascertain how long his final inspection of the system would take. Their visit to DJJ was not an official visit and did not include an inspection. When Petitioner learned that they had gone to one of "her buildings" without her, she thought they intentionally excluded her from official business. She concluded they did not want her in her position due to her experience. At about that same time, Caron asked Long for assistance at one of her facilities in Broward. Prior to Petitioner's employment, Caron had told Long she had some concerns regarding a fire alarm system at the Coconut Grove Playhouse. When they finished in Broward, Long reminded Caron he needed to look at the Playhouse; so, they car-pooled down to Miami-Dade. This was an informal visit, and no official inspection took place. Again, when Petitioner learned they had gone to the Playhouse without her, she assumed they were intentionally excluding her from official business meetings. On July 25, 2001, Petitioner asked Chaplin to come to the DJJ in Miami-Dade because she had some questions about the Code. After they went through the facility and were in the parking lot, Petitioner began making allegations that gave Chaplin concern. She said that Long and Caron were trying to make her quit because they did not like her. She said she resented their making courtesy visits without her. She told him that Long and Caron were intentionally excluding her from meetings. Chaplin told her that she was misinterpreting their behavior and that he was sure there was a reasonable explanation for their attending meetings without Petitioner. She also told Chaplin that she had had a problem in the past working with other females. The following morning Chaplin directed Long and Caron to cancel their appointments and come to his office. He told them what Petitioner had said. They told him that the courtesy visits were not scheduled meetings but spur-of-the-moment visits when Long was in Miami-Dade. They were shocked at Petitioner's accusations because they had selected her for her position and had thought their relationships with Petitioner were good. Chaplin directed them to make Petitioner feel part of the team. That same day Petitioner sent Chaplin an e-mail that included a reminder that she was concerned about the matters she had discussed with him the previous day. On the following day, Chaplin received a call from Caron, who advised him that Peebles was quite upset and he should call her. When Chaplin called, Peebles sounded distraught and on the verge of tears. She told him that Petitioner had been in the office and was really mad at Chaplin, Long, and Caron. Peebles told him the negative things Petitioner had said about her co-workers and her supervisor. Peebles said she was somewhat afraid for her safety due to Petitioner's behavior. Chaplin told her to write a report, and she did. Based upon the description of the incident between Petitioner and Peebles, his own concerns from his meeting with Petitioner two days earlier, and Petitioner's failure to consistently submit accurate and timely vehicle logs and inspection reports, Chaplin made the decision to terminate Petitioner. He was concerned that Petitioner was creating a hostile atmosphere among her co-workers and with him. Chaplin contacted his supervisor and then sent a memo regarding Petitioner's behavior. A few days later he sent a follow-up memo detailing other concerns he had regarding Petitioner's job performance: inspection reports turned in late or not at all, vehicle logs with errors, and failure to follow standard office procedures. Petitioner's age and her sex were not considered when Chaplin made his decision. Chaplin's recommendation that Petitioner be terminated was processed and approved through his chain of command. Petitioner's employment by the Department was terminated August 23. Since she was terminated during her probationary period, she did not have any career service appeal rights. Petitioner was replaced by a 50-year-old male who was even more qualified for the position than was Petitioner. Only administrative assistants had access to the TMIC computer program. Although Petitioner wanted access, no fire protection specialists could access that program. Petitioner was told several times that she did not need to access TMIC and that no inspector had access. The "red book" contains information about the various facilities in a geographic area that are inspected. It is only a guide for inspectors to track when they last inspected a facility. It is not a necessary tool for an inspector to perform his or her job duties and only contains information also available in the office files. Petitioner was not discriminated against by not being given an updated red book until the end of July since the information in it exists elsewhere in the office. Petitioner believes that Chaplin discriminated against her because he did not like her, did not want to hire her, and provided her with a faulty vehicle. Prior to assigning the car to Petitioner, he drove that vehicle for a few days, had it cleaned, and had it serviced and inspected. He knew of no problems with that vehicle. When Petitioner later questioned the condition of the tires, he told her to get the car checked and bring him something in writing. He never received anything in writing from her regarding the condition of the tires.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2004. COPIES FURNISHED: Andrea Spainhour 400 North Main Avenue Clermont, Florida 34712 Mechele R. McBride, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201
The Issue The issues in this case are whether the Respondent committed the violations alleged in an Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent has been licensed to engage in the food service business, having been issued license number 16-09404-R. At all times material to this case, the Respondent has operated a restaurant in which food was prepared and served to the public. The Respondent’s restaurant business is located at 625 East Atlantic Boulevard, Pompano Beach, Florida 33060. On July 7, 2004, the Respondent’s restaurant premises were inspected by Larry Torres. Mr. Torres is a Sanitation and Safety Specialist employed by the Petitioner. In conjunction with the inspection on July 7, 2004, Mr. Torres prepared a Food Service Inspection Report in which he noted matters of significance that he observed during the inspection. During the course of his inspection on July 7, 2005, Mr. Torres noted several deficiencies that were violations of applicable statutes and rules. Mr. Torres advised the restaurant owner of these deficiencies and required that they be corrected by the next day. On July 8, 2005, Mr. Torres re-inspected the Respondent’s restaurant. Some of the deficiencies had been corrected and progress was being made towards the correction of others. Mr. Torres granted an extension of time until July 21, 2004, for the correction of the remaining deficiencies. On July 22, 2005, Mr. Torres again re-inspected the Respondent’s restaurant. As of July 22, 2005, all but four of the original deficiencies had been corrected and efforts were underway to correct those four deficiencies. On this occasion Mr. Torres granted an extension of time until August 22, 1004, within which to correct the remaining deficiencies. On August 23, 2004, Mr. Torres conducted another re- inspection of the Respondent’s restaurant. At that time there were three uncorrected deficiencies. Those uncorrected deficiencies were identified by numbers. The numbers were 32, 37, and 45. Deficiency number 32 was the absence of a sign in the area of the employee hand wash sink reminding employees that they were required to wash their hands before preparing or serving food. This is not a critical violation.3 Deficiency number 37 was an unrepaired hole in the wall in the area of the mop sink. The evidence in this case does not reveal what type of safety or sanitation issue resulted from the hole in the wall in the area of the mop sink. This is not a critical violation.4 Deficiency number 45 related to the condition of the automatic fire suppression system incorporated into the hood over some of the cooking elements in the kitchen. The Respondent’s automatic fire suppression system was an older dry chemical system. Such systems require maintenance and testing once every six years, and the Respondent’s system was overdue for maintenance and testing. Automatic fire suppression systems of the type used by the Respondent are rather rare and it can be difficult and time-consuming to locate the dry chemicals necessary to maintain the system. This was a critical violation because of the possibility of having a kitchen fire at a time when the automatic fire suppression system might not be working. The Respondent’s manager made diligent efforts to resolve deficiency number 45. On July 8, 2004, he received a proposal from a fire protection company to replace the existing fire suppression system with a more modern system for approximately three thousand dollars. That was more than the Respondent’s owner was able to spend to resolve that problem. Eventually the Respondent’s manager found someone who would resolve deficiency number 45 by bringing the existing fire suppression system into compliance for only five hundred dollars. By September 27, 2004, the fire suppression in the hood was in compliance and deficiency number 45 was resolved. The Respondent’s manager procrastinated in addressing deficiency number 32 because of his concerns about resolving the more serious matter of deficiency number 45. It took several months for the Respondent’s manager to hang hand washing signs near the employee hand washing sink. The Respondent’s manager addressed deficiency number 37 a bit sooner. At about the same time that deficiency number 45 was resolved, the manager also patched the hole in the wall by the mop sink area.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case to the following effect: Concluding that the three violations identified in the three numbered paragraphs of the Administrative Complaint existed on the dates alleged in the Administrative Complaints; Concluding that no penalty should be imposed for the violation identified in paragraph 1 of the Administrative Complaint; Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 2 of the Administrative Complaint; and Concluding that an administrative fine in the amount of $50.00 should be imposed for the violation identified in paragraph 3 of the Administrative Complaint. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005.
