The Issue Whether or not the Respondent properly denied Petitioner's application for examination as a nursing home administrator.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing memoranda, and the entire record compiled herein, the following relevant facts are found. Petitioner, Mary Harrison, filed an application to sit for the examination as a nursing home administrator on approximately May 28, 1981, based on her belief that she satisfied the prerequisite for examination as required by Rule Chapter 21Z-11.01, Florida Administrative Code. In a cover letter with her application dated May 28, 1981, Petitioner asserted her position that she satisfied the above requirements by stating that she was over 18 years of age; was a high school graduate; had completed two (2) years of college level studies which prepared her for health administration, in that she held a master's degree in public administration (a program designed for administration in the field of human services with a specialty in human resource management) ; was of good moral character and possessed four (4) years experience in nursing home and two and one half (2 1/2) years experience at Hospice in a management/administrative capacity. 3/ Petitioner's application was preliminarily denied by letter dated July 6, 1981, from the Board on the grounds that Petitioner's degree in public administration was not in the field of health care administration as required by Rule 21Z-11.07, Florida Administrative Code, and additionally, that Petitioner's experience "did not appear to demonstrate that for four (4) years (she) had been in a position of control and administration as needed to fulfill the requirements of Rule 21Z-11.09, Florida Administrative Code Petitioner attended a subsequent Board meeting where her application was considered on July 24, 1981, and she was afforded an opportunity to present a more detailed description of her executive and management responsibilities for its (the Board's) consideration. The Board again denied Petitioner's application, which denial was memorialized in a letter dated July 27, 1981, and cited, as basis for the denial, that Petitioner failed to show that her responsibilities and experience involved the total health services as required by Rule 21Z-11.09, Florida Administrative Code. Petitioner was advised, in that letter, that she may request a hearing which resulted in the instant proceeding before the Division by a letter of transferal from the Board on August 27, 1981. During the four (4) year period from 1976 through 1980, Petitioner was employed as the Director of Social Services at the Boca Raton Convalescent Center, Boca Raton, Florida. The Center is a nursing home. Petitioner's responsibilities included coordination of admissions and discharges, individual and family counseling, development of social work internship programs with the Florida Atlantic University School of Social Welfare and the training and supervision of social work interns who were involved in the Reality Orientation Program. Petitioner's supervision only included social workers and interns in her department and she was not responsible for employees in other departments of the facility. Petitioner participated in what has been described as a team- management system at the Center. Petitioner's involvement in that system included discussions of various courses of action in the interviewing of employees by a search committee which consists of a group of department heads and the Center's administrator. Petitioner did not sign contracts or purchase orders for any services or supplies; she did not sign checks or make any decisions affecting the employment of the staff at the Center such as hiring, firing, layoff, recall suspension or the imposition of disciplinary sanctions. The accounting decisions for the Center were made at a regional office and the Petitioner's involvement in the accounting decisions consisted primarily of reguesting certain items when a budget proposal was made to the regional office and the placing of certain numbers on forms, which had to conform within the framework of the finalized budget as prepared by the Center's regional office. During the above four (4) year period, Petitioner served as Acting Administrator for the Center for one weekend of every five or six weeks where she was authorized to exercise managerial authority temporarily and primarily in cases of emergencies. In this regard, evidence reveals that the Administrator was, even in these instances, still responsible for the exercise of emergency administrative authority by Petitioner while she served as the Acting Administrator. (Testimony of Petitioner and witnesses Melican, Cohen and Lane.) To performing her regular duties as nursing home administrator at the Center, Petitioner exercised the management skills and the executive duties of planning, directing, staffing, organizing and controlling only the social services department. Since early 1980 to present, Petitioner has served as a member of the Board of Directors and a founder of the Florida State Hospice Organization. During her affiliation with the Hospice of Boca Raton, Petitioner performed executive functions for two (2) years at twenty (20) hours per week and one (1) year at thirty-five (35) hours per week. During her affiliation with the Hospice, Petitioner was responsible for and has provided input for the articulation of rules and regulations governing Hospice facilities statewide. Petitioner has also served on resource committees affiliated and/or approved by Respondent for the development of standards to provide and assure quality Hospice care statewide. In the performance of her duties in the Hospice of Boca Raton, Petitioner has exercised management skills and executive duties which include planning, directing, staffing, controlling and organizing that facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent, State of Florida, Department of Professional Regulation, Board of Nursing Home Administrators, deny petitioner's application to sit for the licensing examination in nursing home administration. RECOMMENDED this 1st day of March, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1982.
The Issue The issues in this matter are whether Respondent, Willine Gracia, operated an assisted living facility without the required license, thereby engaging in unlicensed activity; and, if so, the appropriate penalty.
Findings Of Fact The Agency is the state agency responsible for the licensure of assisted living facilities (“ALFs”) in the State of Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat. As part of its responsibilities, the Agency serves as the enforcement arm regarding the licensed (and unlicensed) activity and operation of ALFs. See gen., Chs. 408 and 429, Fla. Stat.; Fla. Admin. Code R. 58A-5 and 59A-35. Respondent owns a house located at 4502 Conley Street, Orlando, Florida. In January 2016, the Agency received a complaint alleging the unlicensed operation of an ALF at the 4502 Conley Street location. The Agency maintains records of ALF licenses and license applications pursuant to chapter 408 and rule 59A-35. Keisha Woods currently serves as an Operations and Management Consultant in the Assisted Living Unit for the Agency. Ms. Woods testified that she searched the Agency’s databases on October 26, 2016, and November 9, 2016, and found no record that Respondent was currently licensed as an ALF or had ever applied to be licensed as an ALF. Tresa Johnston is a Senior Human Services Program Specialist, also known as a “surveyor,” for the Agency. Ms. Johnston investigated the complaint on behalf of the Agency. On January 14, 2016, Ms. Johnston visited Respondent’s house located at 4502 Conley Street, Orlando, Florida. Ms. Johnston arrived around 8:30 a.m. Respondent was not present. Ms. Johnston knocked at the front door. An individual who Ms. Johnston later concluded was residing in the house, greeted her at the door and allowed her entry. Upon entering the house, Ms. Johnston met three individuals who she determined were living in the residence. She observed that the house contained three bedrooms and one bathroom. The residents informed Ms. Johnston that they stayed in two of the three bedrooms. Ms. Johnston also found personal effects in the bedrooms and bathroom that belonged to the residents. In the house, Ms. Johnston observed a combined living room/dining room area in which she found a piano, a small refrigerator, and a microwave. In the refrigerator, Ms. Johnston discovered several frozen meals and drinks. In the bathroom, Ms. Johnston did not find any toilet paper. She also noticed that the bathroom was lit only by a nightlight. On the doorway to the kitchen, Ms. Johnston encountered a sign that read, “Do not enter kitchen at any time.” The residents informed Ms. Johnston that Respondent forbad them from entering the kitchen. Disregarding the sign and entering the kitchen, Ms. Johnston saw that the refrigerator was chained and locked. She found canned foods on the counter and packaged food in the pantry. Ms. Johnston also discovered a dead rat on the floor. Ms. Johnston found the house was extremely cold. All three residents were wearing coats. The residents advised Ms. Johnston that Respondent did not allow them to manage the temperature. Respondent arrived at the house around 9:10 a.m. Respondent was carrying a plastic bag containing medication for all three residents. Upon entering the house, Ms. Johnston testified that she saw Respondent take several prescription bottles out of the bag, pour a dosage of medication into the caps of each bottle, and instruct the residents to ingest the medication. The residents then placed some medications in a daily pill box for a one-day supply. Respondent observed that one medication bottle was empty. She shook it and advised one of the residents, “I owe you one of these. I have to refill it.” Respondent, after giving the residents their medication, put the medication bottles back into the plastic bag. Ms. Johnston also heard Respondent declare that she would have to return in the afternoon to give a resident her medication. Thereafter, Ms. Johnston interviewed Respondent. During this interview, Respondent informed Ms. Johnston that she: does not live at 4502 Conley Street; is not related to any of the three residents; provides housing, meals, and manages medications for all three residents; cooks two meals a day for the residents. (The residents are supposed to eat a frozen meal for their third meal); does not allow the residents into the kitchen; keeps the residents’ medications in a locked cabinet in her home because two of the residents cannot take care of their own medications without her assistance; and generally arrives at the 4502 Conley Street location between 9:00 to 9:30 a.m. each day. Respondent also called the residents her “clients.” Respondent explained to Ms. Johnston that her clients were referred to her by a local hospital. Respondent explained to Ms. Johnston that she is paid to lodge two of the residents through a payee. She was in the process of obtaining a payee for the third resident. On January 22, 2016, Ms. Johnston contacted Anthony Alexander, who is a Representative Payee for the Social Security Administration. At the final hearing, Mr. Alexander explained that the Social Security Administration designated him a payee for certain individuals who have been determined to be unable to manage paying their own personal expenses with their Social Security benefits. Mr. Alexander testified that in his capacity as Representative Payee, he made rental payments to Respondent for two of the residents Ms. Johnston found staying at Respondent’s house. Mr. Alexander recounted that he made the rental payments through direct deposit to Respondent’s bank account. Mr. Alexander further stated that he mailed weekly stipend checks for the two residents to the 4502 Conley Street address. Mr. Alexander represented that his records show that the stipend checks were cashed. In addition, Mr. Alexander testified that, as of the date of the final hearing, he is still paying rent to Respondent for one of the residents. He is also still mailing a weekly stipend check for that individual to 4502 Conley Street, Orlando, Florida. Based on her personal observations and the information provided directly to her from Respondent and the three residents of 4502 Conley Street, Ms. Johnston concluded that Respondent was engaged in unlicensed activity by operating an ALF without a license. Therefore, on January 14, 2016, Ms. Johnston issued Respondent a Notice of Unlicensed Activity (the “Notice”). The Notice instructed Respondent to immediately cease operating an ALF without proper licensure. On February 1, 2016, Ms. Johnston revisited 4502 Conley Street. Ms. Johnston again asked a resident permission to enter the house. This time she was denied entry. However, she saw that two of the three residents she met during her initial visit on January 14, 2016, were still in the house. Based on her observations, Ms. Johnston determined that Respondent was continuing to engage in unlicensed activity after receiving the Notice on January 14, 2016. Respondent was not present at the final hearing. However, in her Election of Rights she presented to the Agency, Respondent wrote: I Willine Gracia have never owned or operated a non license facility. . . . I’ve never promoted myself as such. However, I did have renters in my home and at times some of them came through Lakeside Behavioral. Each of these ladies were independent and did not require supervision and could live on their own without a caregiver. . . . I only offered meals to those ladies who wanted that. I did not provide anything more. . . . I do live at 4502 Conley Street and this is my personal home, which I can prove not a ALF or business. Based on the competent substantial evidence in the record, the facts demonstrate that Respondent was operating an ALF as that term is defined in section 429.02(5). The evidence and testimony also establish that Respondent was engaging in this activity, without the proper license, from January 14, 2016, through February 1, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order finding that Respondent Willine Gracia operated an ALF without a license in violation of chapter 429. It is further recommended that the Agency impose an administrative fine in the amount of $18,000 against Respondent pursuant to section 408.812. DONE AND ENTERED this 9th day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 9th day of December, 2016.
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Charles Peavy, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. This Petition was received by the Division of Administrative Hearings on July 15, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. That Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The matter was originally set for hearing on August 14, 1981, and upon motion of the Petitioner, was reestablished for hearing on September 1, 1981. The hearing was conducted on the aforementioned date. In the course of the final hearing, the Petitioner offered no testimony or presentation in his own behalf. Respondent called as witnesses Robert Alcorn, Clinical Director for the mentally Disordered Sex Offender Program at Florida State Hospital Mike Pomeroy, Petitioner's attending clinical psychologist at Florida State Hospital Connie Smith, Petitioner's social worker at Florida State Hospital and Dr. M. M. Estes, Forensic Unit Psychiatrist at Florida State Hospital. Respondent's Exhibits 1 and 2 were admitted into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time the Petitioner has resided in the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has been subjected to a full range of treatment opportunities he has made no significant progress in the course of his stay, due to a persistent lack of motivation on his part. In the face of this circumstance, the Respondent has made a preliminary determination that it has exhausted all pertinent treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. Thus, the petitioner has requested the formal hearing which is the subject of this Recommended Order. The history of this case reveals that the Petitioner was originally admitted into the program from a commitment order of the court after being charged with the offense of involuntary sexual battery, that commitment coming in January, 1979. The Petitioner having failed to demonstrate reasonable progress, a decision was made in March, 1980, through a staffing conference to the effect that the hospital had exhausted treatment in the facility Florida State Hospital. Likewise, in a departmental screening conducted by the various clinical directors of the several sex offender programs in the State of Florida, held in May, 1980, it was concluded that the Petitioner should be returned to court for reason of exhaustion of treatment. On June 4, 1980, the Petitioner was recommitted to the sex offender program by order of court and the Florida State Hospital reinstituted its treatment of the Petitioner. In January, 1981, a staffing was held on the Petitioner and a decision was reached that the hospital had exhausted treatment for the benefit of the patient. This decision was followed by a decision in February, 1981, by the interdepartmental screening committee of several sex offender programs within the State, to the effect that the overall system had exhausted treatment. Following the February decision, counsel for the Petitioner requested a formal hearing; however, before that hearing could be convened, the Petitioner determined that he did not wish the hearing and was returned to court in April, 1981. The Petitioner was then returned to the Florida State Hospital by order of court on May 22, 1981, and has remained in the hospital since that time. At present, the Petitioner's underlying condition is diagnosed as that of a person with an antisocial personality disorder, severe, with a diagnostic profile which places him in the category of sex offender within the meaning of Chapter 917, Florida Statutes (1979). Contributing to this diagnostic impression is a severe case of substance abuse related to alcohol and substitutes for that chemical, together with a dependence on the psychotrogic medication Mellaril. While the patient has been involved in the program at Florida State Hospital, and has been exposed to the primary therapy of that hospital, namely group therapy, with certain adjunctive therapy and has been treated by numerous therapists, there has been no discernible success. The principal reason for the failure of the patient Peavy has been his lack of motivation, which is an essential prerequisite to success in the program. In this respect, in the course of his stay in the program, the Petitioner has not demonstrated an interest in making progress in the sex offender program. Mike Pomeroy, his primary therapist from May, 1980, until early 1981, through his testimony identified some of the features of the Petitioner's condition. As established by Pomeroy, the main problem with the Petitioner is that difficulty with substance abuse related herein, with the sex offense problem being an underlying feature of that difficulty. In this area, the Petitioner has been willing to discuss sex offenses to include the one for which he had been placed in the program and the others, but only in a superficial way. Pomeroy discovered that the substance abuse of Mellaril dates from approximately the 17th birthday of the patient, who was born on October 19, 1952. During the time of Pomeroy's involvement as therapist it has been necessary isolate the patient from any substance which might give him a "high." The patient has been known on five or six occasions to drink floor wax, 409 cleaner, etc., and at other times the staff has been suspicious that the patient has consumed this type material, in view of the patient's demeanor. While Pomeroy was the primary therapist, the Petitioner used the psychotropic medication Mellaril to maintain a mood, as opposed to a treatment for traditional thought disorders. Attempts to cut back on the amount of the Mellaril dosage have led to hostile episodes in which the patient made threats to hurt other persons. On one occasion, in an attempt to possibly have the patient relocated in a sex offender program in the South Florida State Hospital, the State tried to decrease the Mellaril from the dosage of 600 mgs. per day out of a possible 800 mgs., with 200 mgs. being an average dose. After one or two days, it was determined that the Petitioner was not making an effort to reduce his dependence on the medication Mellaril and it was necessary to isolate the Petitioner due to his behavior. (The Florida State Hospital was unable to effectuate a transfer to the South Florida State Hospital because that latter institution was unwilling to accept a person who had drug dependence, such as that of the Petitioner.) The reason for the isolation in this attempt to wean the Petitioner from the use of Mellaril, was due to confrontations with staff members. Pomeroy has spent more time with this patient than with any other patient in the history of Pomeroy's involvement as a therapist. He finds the Petitioner to be manipulative in playing members of the staff against each other, in the sense of reporting that one staff member has allowed him certain liberties, when in fact that has not proven to be true. The Petitioner, during his stay has agitated other patients in the sex offender program by his hyperactivity and constant attempts to borrow cigarettes from those patients and to do so in an intimidating way, and the Petitioner has even on one occasion thrown a chair at a patient. The Petitioner's attendance in the group therapy sessions which are the most vital phase of the treatment process has been irregular. When he has attended, his discussion in the course of the session has been of matters unrelated to the treatment program. Petitioner has also failed to attend adjunctive therapy sessions, notwithstanding the fact that he was allowed his choice of sessions to attend. In particular, he was allowed to attend the alcoholic rehabilitation program within the hospital and his attendance in those sessions was poor. This performance on the part of the patient has led therapist Pomeroy to comment that the Petitioner has done less to participate in the programs than any patient Pomeroy has known. This participation is essential especially for those persons who are suffering from substance abuse. The Petitioner has been made aware of the consequences of not participating in the sense of his possible return to court and court actions which might lead to further incarceration and more importantly of long term problems which the Petitioner would have in life should he fail to come to grips with his problems. Nonetheless, progress is not forthcoming, and the sexual problem which the Petitioner has is still in evidence, together with the substance abuse. The Florida State Hospital staff has also consulted professionals outside the sex offender program who might be able to deal with the problem with substance abuse however, the attempts have met with no success, in that the outside professionals have indicated that no progress will be made without proper motivation. In particular, the use of Antabuse as a deterrent to alcohol consumption would not be appropriate in view of the fact that this substance is dangerous if the patient is not well motivated. Other observations which are accepted, as made by therapist Pomeroy, establish that the Petitioner has only spoken about himself in one group session that the Petitioner continues to find it difficult to talk about things of a personal nature and that the Petitioner has no ability to get close to people as a means of breaking down the barriers necessary to come to some understanding of the myriad problems confronting him. In summary, from the point of view of Pomeroy and as accepted, the sex offender program has been exhausted in dealing with the Petitioner s circumstance and although the Petitioner continues to meet the definition of disordered sex offender, the placement of Petitioner in the programs administered by Respondent is not only inappropriate but is counterproductive. On the question of alternative placement, Pomeroy is of the persuasion that an institutional setting such as the prison system would allow the Petitioner to "get along about the same as here," meaning the Florida State Hospital. Connie Smith, a social worker who dealt with the Petitioner between January, 1981, and April, 1981, found his participation in group therapy, out of twenty (20) sessions, to be one of seven (7) appearances, within which he only stayed fifteen (15) minutes on two (2) occasions. Then he attended, he sat away from the group and offered no active participation. (At the time that he was attending the sessions, the Petitioner knew that a decision had been made on exhaustion of treatment and he expressed the desire to leave the hospital setting.) Staff psychiatrist, Dr. M. M. Estes, in the course of his testimony, concurred with the diagnostic impression of antisocial personality disorder, severe. He finds that the Petitioner gets along well with other persons as long as he is having his way. He finds that the Petitioner is intolerant of any regimented style of life, such as the hospital setting. In speaking to the issue of the use of Mellaril, the amount of 600 mgs. is a high amount and through the process of the De utilization of that substance, over the years, the patient now suffers from a side effect known as tardive dyskinesia. This condition and its appearance is close to that of Huntingtons-Cohrea. In this patient, the condition has manifested itself as an involuntary movement of the tongue and other muscles. Peavy has been advised not to use this medication as a mild palliative, this advice coming from Dr. Estes. As stated before, attempts have been made to have Peavy withdraw from the use of this medication, but when this has been attempted, Peavy has threatened violance in the sense of indicating his willingness to "tear up the place." Nonetheless, Dr. Estes is of the persuasion that the Petitioner's neurological condition as described will continue to get worse if he persists in the use of the psychotropic medication. Dr. Estes' observations established that the patient has the mental capacity to recognize what he is doing and he is found to be in touch with reality and in touch with time and knowledgeable of right and wrong, in the theoretical sense. Nevertheless, the Petitioner has never had to suffer the consequences of his criminal acts and remains unconvinced of those consequences. According to Dr. Estes and as established through his testimony, the patient is not benefiting from the sex offender program of the Department of Health and Rehabilitative Services and there is no real likelihood of improving in his condition through involvement in that program. Moreover, continued participation will only hinder the patient. Dr. Estes identified the fact that drug dependence does not impair the ability to make progress in the program, but the nature of the underlying diagnosis of antisocial personality is one which calls for external control and the need to learn conformity and the fact that the conformity is not threatening. The patient has not achieved those improvements in that he becomes frustrated and exasperated easily, as established by Dr. Estes. At this time, there is no sign of organic degeneration in the patient as a result of substance abuse, but that potential exists, per Dr. Estes. The report of Dr. Paul Deitchman, dated December 1980, was also admitted. Dr. Deitchman is a clinical psychologist, who examined the Petitioner upon request of Petitioner's counsel. In his report, Dr. Deitchman is supportive of the position of the Respondent on the question of returning the Petitioner to court for reason of exhaustion of treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Charles Peavy, and that said Charles Peavy be returned to the committing court for further disposition. DONE and ENTERED this 28th day of September, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 28th day of September, 1981. COPIES FURNISHED: Ken Driggs, Esquire Assistant Public Defender Post Office Box 671 Tallahassee, Florida 32302 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324 William Ploss, Esquire Assistant Public Defender 1351 Northwest 12th Street Miami, Florida 33125
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Florida State Hospital, is an "employer" as statutorily defined at Section 760.02(7), Florida Statutes (2007).
Findings Of Fact Behavioral Health Solutions LLC is a private business entity (BHS). The Petitioner was employed by BHS as a clerk- typist beginning on October 6, 2006, and until February 6, 2007, when she was terminated. BHS and the Department of Children and Family Services/Florida State Hospital entered into a contract on September 16, 2006, whereby BHS was to be responsible for providing staff for various positions for the provision of services to residents of Florida State Hospital. One of those positions was that occupied by the Petitioner, at times pertinent to this proceeding. The contract provided that BHS would be responsible for hiring, transferring, promoting, discipline, and discharge/termination of BHS staff. BHS was also responsible for providing its staff with salaries, benefits, compensation packages and training. BHS has its own organizational structure which was not integrated into that of the Respondent Florida State Hospital's organizational structure. The Respondent Florida State Hospital was charged with supervising BHS's staff and with recommendations where required, for disciplinary action or removal from the work site. BHS had the final authority to reassign, discipline or terminate BHS staff, however, by the terms of the contract. The Petitioner was hired by BHS as of October 6, 2006. The offer of employment which she accepted came from BHS. The Petitioner was told later that she was terminated in February 2007 by Angie Burge, the BHS Human Resources Manager. The Petitioner's date of employment were October 6, 2006, through February 6, 2007. The testimony of Angie Burge and Amy Bryant establishes that BHS employees such as the Petitioner, were trained by BHS. Ms. Bryant established through her testimony, as the Operations and Management Consultant for the Department of Children and Families (Department) that neither the Department nor Florida State Hospital had controlling responsibility over employee relations matters regarding BHS's staff/employees, such as the Petitioner. Although she and Florida State Hospital worked in conjunction with Ms. Burge and BHS on employee training requirements, BHS employees, including the Petitioner, were trained by BHS and its staff. BHS and the Respondent Florida State Hospital had a contract for BHS to provide staff for the forensic unit at Florida State Hospital, where the Petitioner was employed by BHS and the contract included the requirement that BHS operate that unit. At orientation, BHS provided its employees or new hires, including the Petitioner, all polices and procedures of BHS and trained them as to such policies and procedures. Ms. Burge, a BHS staff member, provided that training. BHS had authority to hire employees or to terminate them or discipline them and to make final decisions on the performance of the duties of the staff it hired, including the Petitioner. Florida State Hospital and the Department did not have final authority on such matters but could only recommend to BHS. The salary and benefits plan of BHS was very different from that of Florida State Hospital. It was based upon the parent company's pay and benefits scheme, the parent company being Lakeview Center, Inc. The administrators of Florida State Hospital did not have any decision-making authority in employee regulation, discipline, hiring, and termination decisions. Ms. Burge, the BHS Human Resources Manager, made the decision and informed the Petitioner of her termination. The Petitioner has not presented persuasive evidence that Florida State Hospital had sufficient control over the terms and conditions of the Petitioner's employment, or the employment of other BHS staff members, so that such staff members, including the Petitioner, could be deemed employees of the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety due to lack of jurisdiction. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Corrine Hamilton 440 South Cone Street Quincy, Florida 32351 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000
The Issue Whether Respondent violated Section 112.041, Florida Statutes, by failure to select Petitioner for the position of Supervisor, Forensic Social Work Unit, South Florida State Hospital. This case arises from the filing of a complaint byPetitioner alleging that he was unlawfully discriminated againstin failing to be promoted at the South Florida State Hospital because of his national origin. Although Respondent had in existence a procedure for the handling of such complaints of discrimination, HRS regulation No. 60-1, dated December 18, 1974, it was stipulated at the hearing that both parties waived the procedural requirements of that directive and agreed that the matter would be determined solely as a result of evidence presented at the hearing herein.
Findings Of Fact Petitioner has been employed at the South Florida State Hospital (Hospital), Hollywood, Florida, since 1969. He started in the Hospital Day Care Center as a Social Worker. He was promoted in 1975 to Clinical Social Worker I and has held thatposition until the present time. He came to this country from Cuba in 1960, where he had been a practicing attorney since 1938,upon his graduation from the School of Law, University of Havana.During the nine years previous to his employment by Respondent he had been an insurance agent in New York and a teacher inMichigan. In 1975, he completed a special law program at the University of Florida. (Testimony of Gonzalez, Petitioner'sExhibit 6) The Social Services Department at the Hospital includes all social workers assigned to the various hospital services. The director of the Department since 1960 has been Mrs. Dorothy H. Alberts. Clinical Social Workers are classified in grades I, II and III. The job description of the lowest position, Clinical Social Worker I, provides that such an employee is responsible for obtaining pertinent information from patients upon admittance to the hospital and thereafter serves as a member of a psychiatric team administering treatment and therapy to patients on an individual and group basis. A team is headed by a psychiatrist and includes a clinical psychologist, therapist, psychiatric aide, and social worker. The duties of the social worker also include counseling patients on adjustment problems, pre-release activities, and working with patients' families in order that they may assist in the rehabilitation process. Minimum training and experience for this position is a baccalaureate degree and one year of social work or guidance counseling experience; however, a master's degree in a social or rehabilitative science may be substituted for the required experience. The Clinical Social Worker II performs essentially thesame services as the Clinical Social Worker I, but works with more acute cases, serves as a team leader in the rehabilitative process, and provides supervision of subordinate social workers. The Clinical Social Worker III assists in supervising the clinical social services activities of a major program, supervises subordinate social workers and assists the Social Service Director in implementing the team treatment approach in a mental hospital. Although the above delineation of duties is reflectedin hospital job descriptions, as a practical matter the Clinical Social Worker III in the Forensic Unit of the South Florida State Hospital not only performs administrative tasks, but also deals with individual patients due to shortage of personnel. In addition to a baccalaureate degree, a Clinical Social Worker II is required to have two years of social worker guidance counseling experience. A Master's Degree in a social or rehabilitative service may be substituted for one year of the required experience. The Clinical Worker III is required to have a degree and three years of such experience for which a Master's Degree in a social or rehabilitative science may be substituted for one year of the required experience. To perform effectively, a social worker must be dedicated to patient care and effectively relate to the patient.Although a knowledge of the Spanish language and culture is anasset because approximately ten percent of the patients at thehospital are Spanish-speaking or of Hispanic origin, such knowledge or background is not mandatory, particularly when occupying a supervisory position. Those social workers assigned to the Forensic Unit perform additional functions involving court liaison and therefore a legal background is helpful, but not required. (Testimony of Hahn, Hernandez, Reinoso, Alberts, Petitioner's Composite Exhibit 1) In August 1976, the incumbent Clinical Social WorkerIII in Forensic Services at the Hospital, Robert Bohler, told Mrs. Alberts that he intended to leave that position for a promotion elsewhere. At that time, there were in existence no agency rules establishing the criteria or procedures for filling such a vacancy other than in broad general terms. Prevailing practice in the district where the Hospital was located was that a vacant position be advertised in a job opportunity bulletin for a period of ten days and then filled from applications received by the promoting authority. In this case, the promoting authority was the Department Head, Alberts, who exercised complete authority in determiningwho was eligible for and should be appointed to the position. Since Bohler's position was non-competetive, there was no need for a candidate to be on a state register of eligible personnel and anyone meeting the minimum training and experience requirements set forth in current job descriptions could be considered. (Testimony of Rudominer, Copp, Nichols) Bohler had notified Alberts of his intentionto resign, effective September 3, 1976, in a memorandum, datedAugust 23, 1976. Bohler also told Dale Frick, the Clinical SocialWorker II in the Forensic Services of his plan to depart. Frickmet with Bohler and Alberts, at which time the latter told him that he would have to apply for the position and that she would consider him along with any other applicants. Frick proceeded to file his application, dated August 24, 1976 and, on August 25, Alberts sent a memo to the Hospital Personnel Officer stating that she would like to fill the vacancy by promoting Frick who was well qualified. On August 31, Bohler sent a memorandum to Albertsrecommending Frick highly for the anticipated vacancy. On orabout September 1, Job Opportunity Bulletin No. 18 of HRS District 10 was published which included the position of Clinical Social Worker III with a closing date for applications of September 14, 1976. (Testimony of Alberts, Frick, Copp, Petitioner's Exhibits2, 5, Respondent's Exhibit 1) Petitioner learned of the upcoming position vacancy in August and asked Dr. Pedro Hernandez, Clinical Director of the Forensic Services, about it. Hernandez told him that promotions were made in the Social Work Department solely by Mrs. Alberts and suggested that he see her. Petitioner thereafter had a conversation with Alberts in which he told her he would like to be considered for the position. She informed him that she did not believe he was professionally qualified for the job. Nevertheless, Petitioner filed an application on August 31, 1976. (Testimony of Hernandez, Alberts, Gonzalez, Petitioner's Exhibit 6) The Job Opportunity Bulletin listing the position was posted in several places at the hospital during the time the job was being advertised. Frick was appointed to the position on an acting basis pending selection of an applicant. At the conclusion of the advertising period, Frick's application was the only one that Alberts had received. She had solicited a former employee of Hispanic origin to apply, but that individual, Angela Lavernia, declined the invitation as she had received a prior offer in the teaching field. For some reason, Petitioner's application was not transmitted to Alberts. On September 17, Frick was appointed as the Clinical Social Worker III to replace Bohler. Alberts testified at the hearing that she had considered Frick the most logical employee to fill the vacancy from the outset, and that, therefore, her premature recommendation could be termed a "prejudgment." However, she stated that she was familiar with Petitioner's record and qualifications over past years and that she would have selected Frick even if she had had Petitioner's application before her. However, if a much more qualified individual than Frick had applied, she would have changed her mind. She based her selection of Frick not only because his was the only application received. She was of the opinion that, in comparison with Petitioner, Frick's educationaland experience qualifications were superior. Additionally, he had supervisory experience, whereas Petitioner did not. She was more interested in the type of experience an applicant possessed than the amount of such experience, together with prior performance, interest in the field, knowledge, efforts to improve oneself by taking courses and workshops. In these areas, she considered Frick to excel Petitioner. Although she obtained a list of eligible applicants in Broward County from the Department Of Administration, she was not required to use that list because the position was noncompetitive. Frick was on the list but not Gonzalez, since he had never applied for certification prior to that time. (He later did so after the appointment had been effected and received certification from the State as Clinical Social Worker II and III) (Testimony of Alberts, Copp,Gonzalez, Frick) Frick held a Master's Degree in psychology and, before his employment commenced at the South Florida State Hospital in March, 1976, he had been successively a special psychiatric attendant in an Indiana hospital for six months in 1973, a "house parent" with the Youth Service Bureau of Porter County, Indiana, and a director of a residential treatment center for almost a year. His duties had involved counseling and supervision of delinquent and emotionally disturbed adolescents. He served as a vocational rehabilitation counselor in Fort Lauderdale from July, 1974, to March 1976, with duties involving counseling, placement, and coordination of vocational services for psychiatrically handicapped persons, including group counseling for emotionally disturbed adolescents at South Florida State Hospital. In March 1976, he was appointed as a Clinical Social Worker II in the Forensic Service at the Hospital. Bohler's most recent performance evaluations resulted in an outstanding rating for Frick and an above satisfactory rating for Petitioner. Both employees are considered competent and equally capable of performing the duties of a Clinical Social Worker III by the Forensic Clinical Director and several of the psychiatrists. ( Testimony of Frick, Hahn, Hernandez, Reinoso, Copp, Petitioner's Exhibit 5) Petitioner testified that he has been the subject of discrimination by Alberts ever since he was first employed atthe Hospital. He claims that his only promotion from Social Worker to Clinical Social Worker I in 1975 did not come about until the Hospital personnel director personally interceded with Alberts. He is further of the belief that although Alberts has not made any derogatory ethnic remarks, she has shown her prejudice by failing to promote persons of Spanish origin in her department. He further believes that she downgrades his degree from the University of Havana and considers it of no value. However, written statements of two employees at the hospital, and a former employee, all of Hispanic origin, state that Alberts had never shown any discrimination toward them or anyone else due to ethnic background. Alberts denied any discrimination on her part toward Petitioner or any other employee. (Testimony of Alberts, Gonzales, Respondent's Exhibits 2-4) Although Petitioner submitted a further applicationfor Frick's former position as Clinical Social Worker II in October, 1976, that position was "frozen" and never filled after being advertised as a vacancy. (Testimony of Alberts, Gonzalez)
Recommendation That Petitioner's complaint be dismissed. DONE and ENTERED this 30th day of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Doug Whitney, Esquire 1350 Orange Avenue Winter Park, Florida 32789 Roger Besu, Esquire Roberts Building, Suite 900 28 Flagler Street Miami, Florida 33130
