Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988.
The Issue Whether Petitioner was legally justified in issuing a conditional license rating to Respondent.
Findings Of Fact AHCA is the state agency responsible for licensing and regulating nursing homes in Florida. Respondent Berkshire is a licensed nursing home located in North Miami, Florida. On April 2, 2002, AHCA conducted a survey of Berkshire and identified the violations which give rise to this proceeding. Specifically, at the time of the survey, several magnetic door locks--the record does not reveal precisely how many, although the parties agree that the number was no less than three and no more than seven out of a total of fifteen fire exit doors--did not immediately unlock upon activation of the fire alarm system. The purpose of the door locks is to prevent cognitively impaired residents from wandering away from the facility. When the magnetic lock system is working properly, the doors unlock immediately upon activation of the fire alarm. In response to the AHCA survey finding, Berkshire immediately summoned an alarm system repair person. On April 2, this individual was located somewhere in Florida's Panhandle. He left north Florida and proceeded immediately to Berkshire. The repairman determined that two wires and a circuit were reversed, most likely due to an error by Berkshire's on- site maintenance director. By the next day, April 3, the problem had been corrected and all door locks were deactivating simultaneously with the activation of the fire alarm system. Based upon the April 2 survey, AHCA issued a conditional license to Berkshire effective April 5, 2002, and imposed an administrative fine of $12,500. AHCA also placed the facility on a six-month survey cycle and assessed a survey fee of $6,000. These penalties, particularly the conditional license status, have a substantial adverse impact upon the reputation and the business interests of a nursing home. AHCA's decision to impose a conditional license status was predicated upon the opinion of its inspectors that the mechanical failure identified in the survey was, in fact, likely to cause serious injury, harm, impairment or death to a resident receiving care in the facility, and must therefore be deemed a Class I deficiency which warrants, as a matter of law, the penalties imposed. At the time of the survey, Berkshire had no history of fires, had passed its most recent annual inspection by the local fire marshal, and had a sprinkler system and fire extinguishers throughout the facility. The survey itself revealed no fire hazards. AHCA cites no statute, rule, or case which supports its view that the mechanical problem identified constitutes a Class I deficiency. Instead, it offers opinion testimony that as a result of this problem, residents were in danger on the date of the survey. That opinion testimony is based solely upon speculation. For example, AHCA's life safety inspector who participated in the survey said, ". . . we always look at, inspect the facilities under a worst case scenario type situation. In the event of a fire, we could have a situation we would have residents where the fire alarm system would activate and we would have residents attempting to exit the building. They would find that those doors, affected doors, would not be openable. They would not be able to exit the building. " In fact, the evidence established that the ability of residents to vacate the building in a safe and timely manner in the event of a fire, or fire drill, was not significantly impacted on April 2 by the mechanical problem identified. The automatic unlock feature which was not operating on less than half of Berkshire's fire exit doors is just one part of Berkshire's fire safety plan. State and federal law and Berkshire's own operating procedures provide that staff be given detailed training regarding what to do in the event of a fire; fire safety plans must be approved by the local fire marshal, and most include back up plans for system failures which can reasonably be anticipated. With reference to each of the door locks identified in the April 2 survey, the evidence established that each of these doors could be opened manually, and that there was an adequate number of able bodied staff members who could open each of the doors as may be necessary had a real fire or a fire drill occurred on April 2. Berkshire's fire safety procedures provide that when the fire alarm activates, an announcement is made over the public address system to inform all present of the fire's location. Depending upon the fire's location, staff members will respond in various appropriate ways. Within each department, various individuals are assigned to perform various functions, including, most importantly, assuring that each resident is safely escorted from the building and protected while outside. State law requires monthly tests of the fire alarm system, but Berkshire exceeds this standard with weekly tests. Fire drills are conducted for staff members who work on all three shifts, and staff are trained in evacuating residents in a manner appropriate to their individual circumstance. No matter where one is located in the building, there are multiple means of egress, and each exit door has multiple means by which it can be opened in a timely manner in the event of fire or other emergency. Monthly unannounced fire drills are conducted at Berkshire on all three shifts in an effort to ensure that staff can safely and quickly evacuate residents should the need arise. There is no evidence that staff could not have done so had a fire or fire drill occurred on April 2. Thus, AHCA's finding that the mechanical problem which existed on April 2 and which was remedied by April 3 posed a likelihood of serious injury, impairment, or death to residents in Berkshire's care is not supported by any competent evidence.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that AHCA issue a final order dismissing the Administrative Complaints in these cases. DONE AND ENTERED this 26th day of March, 2003, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 26th day of March, 2003. COPIES FURNISHED: Nelson Rodney, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 R. Davis Thomas, Jr. Qualified Representative Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaints, the Respondent, Freed Towers, Ltd., was a business association between June E. Freed and Audley L. Freed, husband and wife, who owned and operated it as an Adult Congregate Living Facility, located at 1029 7th Avenue East, Bradenton, Florida. The facility was licensed for 50 apartments, (100 beds). Petitioner, Department, was and is the state agency responsible for licensing the operation of ACLFs in Florida. On January 10, 1989, Tami J. Smith, a human services program analyst with the Department Office of Licensure and Certification in Tampa, along with a team consisting of a dietitian and a fire inspector, inspected the Respondent's facility located in Bradenton. During the course of the inspection, Ms. Smith noted that Respondent's records on six employees failed to include the statement that the employees were free from disease or other communicable illnesses. Ms. Smith also noted that a portion of the carpet in the dining room was dirty and displayed numerous coffee stains. During the same inspection, another member of the team, Mr. Scharnweber, the fire protection specialist, noted that the quarterly smoke detector inspections and tests had not been conducted or documented; the quarterly fire alarm pull station tests had not been conducted or documented; the automatic sprinkler system had not been inspected or documented quarterly; several portable fire extinguishers had not been inspected within the past year; and the fixed extinguishing system for the protection of cooking equipment in the kitchen did not display a current semiannual inspection tag. The team consisting of Ms. Smith and Mr. Scharnweber returned to the facility on a follow-up inspection on May 1, 1989. At that time Ms. Smith noted that of the six employee records which had previously failed to contain the required health certificate, four had been corrected but two had not. At the same time, she noted that on the May 1 visit, an effort had been made to clean the carpet but it was not done correctly. Because an effort had been made, however, she noted that on the inspection report and indicated that the deficiency was under correction. On July 12, 1989, Ms. Smith returned to the facility for a second follow-up inspection. At that time she noted that one of the previously noted employee files still did not have the required health certificate, and the carpet was still unsatisfactorily dirty. As a result, she wrote up both deficiencies. Mr. Scharnweber conducted a follow-up inspection in his area on April 28, 1989 and found at that time that no corrective action had been taken. A follow-up conducted at the same time as that done by Ms. Smith on July 12, 1989 indicated the required tag was still not on the cooking equipment, but the other discrepancies had been corrected. When the initial inspection was concluded on January 10, 1989, prior to leaving the facility the inspection team met with the facility operators and went over each of the noted discrepancies, identifying the problem and giving suggestions as to how each could be corrected. They also discussed with the operators an appropriate time for correction and entered into an agreement as to that matter. On January 23, 1989, the Department sent a copy of the inspection report, with proposed correction dates, to the operators and on January 30, 1989, Gary C. Freed, then the Administrator of the facility and the son of the Mr. and Mrs. Freed previously identified, signed and returned to the Department an acknowledgment of receipt of the list of discrepancies and the agreed upon correction dates. The testimony of Ms. Smith and Mr. Scharnweber, as included in the above Findings of Fact, clearly establish that the initially identified deficiencies were not corrected in full consistent with the time frame agreed upon by the parties. The Freeds opened the facility in May, 1988 with their son, Gary, as Administrator. Gary ran it until April, 1989. It was obvious to the Freeds at that time that he was not properly operating it and he was removed as Administrator in April, 1989. At that time, Mrs. Freed took over as Administrator and was certified in that position at the earliest possible time. When Mrs. Freed took over she found the business was unable to afford to hire a trained Administrator and was unable to expend the monies necessary for immediate and full correction of the deficiencies identified by the inspectors. In fact, she recognized there were many discrepancies which needed correction and claims it was overwhelming to anticipate doing all which had to be done in the time frame given. With regard to the medical certificates, Mrs. Freed claims that she made considerable effort to convince her employees to comply with the requirement for proper certification. She states that each employee had a doctor's certificate but those certificates did not contain the required statement that the employee was free of communicable disease. It was only when she threatened to fire any employee who did not provide the appropriate certificate that she was able to secure everyone's compliance. Unfortunately, she missed one. As for the carpet deficiency, she claims the carpet is constantly being cleaned and an effort made to insure it is within compliance. A cleaner is rented periodically, but she admits many of the employees and residents are careless and spill on the rug and that it is impossible to keep the rug in a pristine condition. This argument is not persuasive as justification for the failure to bring the carpet within standards. As licensees and operators, the Freeds are bound to insure that employees meet state requirements and that the facility meets state standards. Mr. Freed claims that when he first took over the facility, even though county fire authorities had inspected and found his fire protection system to be adequate, upon notification by the Department of the need for additional fire extinguishers, he immediately purchased five new ones. With regard to the kitchen equipment, Mr. Freed claims it was of the proper kind and properly installed, and that if any deficiency exists, it was solely in the failure to display the proper tag. This is all that is alleged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary issue a Final Order as to both consolidated files, assessing a total Administrative Fine of $500.00 against the Respondent. RECOMMENDED this 21 day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21 day of July, 1990. COPIES FURNISHED: Edward A. Haman, Esquire DHRS Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 June E. Freed Audley L. Freed Freed Towers 1029 7th Avenue East Bradenton, Florida 34208 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issues are whether Respondent's proposed award of four contracts to Intervenor Piper Fire Protection, Inc., is contrary to statutes, rules, policies, or the specifications, pursuant to Section 120.57(3)(f), Florida Statutes, and, if so, whether Respondent's identification of Intervenor Interstate Fire Systems, Inc., as the next lowest responsive bidder for one of the contracts is also contrary to statutes, rules, policies, or the specifications.
Findings Of Fact On February 21, 2002, Respondent issued an invitation to bid under the bid title, "Life Safety Equipment Inspection, Maintenance & Repair Services" (ITB). ITB Section 6.1 provides that Respondent will award a contract to the "responsive, responsible bidder" with the lowest bid; thus, the ITB does not contain business criteria on which responsive bids of responsible bidders are evaluated. ITB Section 2.1 states: "Life Safety Equipment inspection, maintenance and repair services have, in the past, been procured by the individual institution or facility or handled in-house." Electing to centralize the procurement of these services, Respondent "has decided to competitively bid for life safety equipment inspection services by region." ITB Section 2.3 discloses that Respondent intends to contract with a single vendor in each geographical region. ITB Section 2.2 states: The successful bidder/contractor shall provide Life Safety Equipment inspection, maintenance and repair services for the following items . . .: Annual Fire Alarm System inspection, testing, repair and maintenance. Fire Extinguisher six (6) year recharge and maintenance, twelve (12) year recharge and hydrostatic testing, and fire extinguisher replacement. Semi-Annual Kitchen Fire Suppression Systems testing, inspection and maintenance. Annual Sprinkler Systems inspection, repair and maintenance. Kitchen Exhaust Hood Cleaning on an as- needed basis with a minimum of twice annually. ITB Section 3.1.1 states that the selected contractor shall provide "Life Safety Equipment inspection, maintenance and repair services on the following equipment: Fire Alarm Systems, Kitchen Fire Suppression Systems, Sprinkler Systems and Kitchen Hoods." Section 3.1.1 requires that the "Contractor shall be licensed" under Chapter 633, Florida Statutes. ITB Section 3.7.3 states: "The Contractor's staff shall be fully trained and certified to perform the inspection, maintenance and repair of the equipment specified in this ITB. Acceptable proof of certification shall be in accordance with Chapter 633, Florida Statutes." Chapter 633, Florida Statutes, enumerates the responsibilities of the State Fire Marshall, Department of Insurance. In general, the State Fire Marshall has complete licensing and disciplinary jurisdiction over commercial suppliers of the activities described in subparagraphs 2-4 of paragraph 3, above. Under Section 633.70(1), the State Fire Marshall has nonexclusive jurisdiction over certain violations by alarm system contractors (as used in this recommended order, "alarm system contractors" shall include electrical contractors authorized to perform alarm system services). Although not addressed by the ITB, except possibly the first sentence of Section 3.7.3, alarm system contractors are under the licensing and disciplinary jurisdiction of the Electrical Contractors' Licensing Board, Department of Business and Professional Regulation, pursuant to, respectively, Sections 489.511 and 489.533(2), Florida Statutes. Licensing and disciplinary jurisdiction for the cleaning of kitchen exhaust hood systems in correctional institutions is unclear, but Respondent's Rule 33-20.4003(4)(a), Florida Administrative Code, adopts Rule 64E-11.008(4), Florida Administrative Code, which requires that kitchen ventilation systems comply with applicable fire prevention systems. In contrast to ITB Section 3, which describes the scope of services, ITB Section 4 sets forth the provisions governing the procurement process. ITB Section 4.3.6 states: "The Department will reject any and all bids not meeting mandatory responsiveness requirements. In addition, the Department will reject any and all bids containing material deviations." ITB Section 4.3.6.1 defines "mandatory responsiveness requirements" as "[t]erms, conditions or requirements that must be met by the bidder/contractor to be responsive to this ITB. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid." ITB Section 4.3.6.2 defines "material deviations" as: The Department has established certain requirements with respect to bids to be submitted by bidder/contractor. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this ITB's requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items or services bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. ITB Section 4.3.6.3 defines "minor irregularities" as: A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interests of the Department. ITB Section 4.3.9 states: All bidders planning to submit a bid must submit a letter stateing this intent by the date and time specified in the "Calendar of Events" (Section 4.2). This letter may be e-mailed, mailed, faxed or hand delivered; however, the bidder should confirm receipt of the notice of intent in order to ensure continued receipt of procurement materials. Section 4.3.10 adds that Respondent will mail addenda to the ITB "only to those bidders submitting a Letter of Intent to Bid." ITB Section 5.1 identifies four "mandatory responsiveness requirements." Section 5.1.1 requires the bidder to supply an original and one copy of the bid. Section 5.1.2 requires a duly authorized person to sign the supplemental bid sheets. Section 5.1.3 requires the bidder to sign and deliver an acknowledgement of contractual services. Section 5.1.4 requires the bidder to sign an acknowledged certification of six conditions: "business/corporate experience," "authority to legally bind the bidder," "acceptance of terms and conditions," "statement of no involvement," "nondiscrimination statement," and "unauthorized employment of alien workers statement." ITB Section 5.1.4.1 details the requirements of the "business/corporate experience" certification: A statement certifying that the bidder/contractor has business/corporate experience of at least three (3) years relevant to the provision of life safety equipment services as defined herein, within the last five (5) years. The reference in Section 5.1.4.1 to "life safety equipment services as defined herein" is not to an explicit definition of such services in the ITB. A restatement of Section 5.1.4.1 in the attachments omits "as defined herein." ITB Section 1.6 defines "Life Safety Equipment Inspection, Maintenance and Repair Services" as: "The inspection, maintenance and repair of fire alarm systems, fire extinguishers, kitchen fire suppression systems, sprinkler systems and the cleaning of kitchen exhaust hoods." Petitioner and Intervenors timely submitted bids. Petitioner and Intervenor Piper Fire Protection, Inc. (Piper), submitted bids for all four geographical regions into which Respondent divided Florida. Intervenor Interstate Fire Systems, Inc. (Interstate), submitted a bid only for one geographical region. Petitioner and Piper timely submitted letters of intent to bid, but Interstate never submitted such a letter. Determining that Petitioner and Intervenors' bids were all responsive, Respondent selected Piper's bids for all four geographical regions as the lowest bids. Petitioner submitted the second-lowest bid for three regions and, for the fourth region, Petitioner submitted the third-lowest bid; Interstate submitted the second-lowest bid for this region. Petitioner timely submitted its notice of intent to protest and written protest. Petitioner and Intervenors have standing to participate in this case. Petitioner contends that Piper's bid, which includes an executed certificate of business/corporate experience, was not responsive because Piper lacked the requisite business/corporate experience. Petitioner contends that Interstate's bid was not responsive because Interstate failed to submit a letter of intent to bid. For three of the last five years, Piper presents the requisite experience only in sprinkler systems, not in fire alarm systems, fire extinguishers, or kitchen fire suppression systems. By contrast, Petitioner, which has been in the fire- safety business for over a century, has the requisite experience in all of these items. As used in ITB Section 5.1.4.1, the "provision of life safety services as defined herein" requires consideration of the definition, at ITB Section 1.6, of "life safety equipment inspection, maintenance and repair services" as the "inspection, maintenance and repair of fire alarm systems, fire extinguishers, kitchen fire suppression systems, sprinkler systems and the cleaning of kitchen exhaust hoods." Obviously, Section 1.6 applies the activities of inspecting, maintaining, and repairing only to fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems. Not only does it not make sense to inspect, maintain, and repair the "cleaning of kitchen exhaust hoods," but ITB Section 3.1.6 limits the scope of work for kitchen exhaust systems to cleaning. The scope of services for kitchen exhaust hoods is thus considerably narrower than the scope of services for the other items. Kitchen exhaust hoods differ from the other items in another important respect. Although, among these items, only the kitchen exhaust hood is a significant source of fire, the licensing regime imposed on the inspecting, maintaining, and repairing of the other items is considerably more elaborate than the licensing scheme imposed upon the cleaning of kitchen exhaust hoods--likely due to the relative degrees of difficulty involved in the two sets of tasks. As confirmed by the testimony of its witness responsible for preparing the ITB, Respondent did not intend to allow a bidder with three-of-the-last-five years' experience in cleaning kitchen exhaust hoods to satisfy this responsiveness criterion solely on the basis of this experience. A close reading of the ITB supports this intention. As noted above, the language of the ITB and common sense justify different treatment for the cleaning of kitchen exhaust hoods than for the inspecting, maintaining, and repairing of the fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems. Perhaps most importantly, the responsiveness criterion addresses only life safety equipment. Fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems are examples of equipment whose sole purpose is life safety. The purpose of a kitchen exhaust hood is not life safety, but kitchen ventilation. A clean kitchen exhaust hood eliminates a source of fire, but is not, in itself, a form a life safety equipment. The heading of Section 1.6 describes the inspecting, maintaining, and repairing of fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems; the cleaning of kitchen exhaust hoods appears to have been an addition--perhaps a late one--by someone who gave little thought to the effect of this apparently innocuous clause on the grammar or title of Section 1.6 and, thus, the meaning of Section 5.1.4.1. Even though the ITB precludes a bidder's reliance on cleaning kitchen exhaust hoods to meet the criterion of business/corporate experience, the more difficult question remains whether a bidder must present experience across the entire range of remaining items, or whether a bidder may present experience limited to one or fewer than all of the remaining items. As noted above, by regulatory regimes, a line of possible demarcation exists between fire alarm systems, on the one hand, and fire extinguishers, kitchen fire suppression systems, and sprinkler systems, on the other hand. Additionally, the fire-alarm system is a detection system, and the remaining items are fire-fighting devices or systems. However, Piper's sole qualifying experience is in one of the fire-fighting systems, so this case does not directly raise the question of the sufficiency of otherwise-qualifying experience in only a fire-detection system. Section 5.1.4.1 speaks in a general tone. First, the actual requirement is in services--the services here are inspecting, maintaining, and repairing. Second, the extent of the qualifying experience is left open. During the qualifying three years, the bidder needs only "experience." The ITB does not require exclusive experience, nor does it require even substantial experience. Arguably, part-time experience would suffice. Third, the ITB does not qualify the kind of "life safety equipment" for which service experience is required. Given the tone of the relatively relaxed responsiveness requirement, the Administrative Law Judge chooses "any" rather than "all" as a fairer word to precede "life safety equipment." (The close linkage among inspecting, maintaining, and repairing, as compared to the loose linkage among fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems, strongly suggests that the meaningful distinction is not among the types of services, but rather among the types of equipment receiving services.) The fairest reading of the ITB thus allows a bidder to satisfy the responsiveness criterion with qualifying experience in only sprinkler systems, as Piper has done. Although it is unnecessary to address the contention regarding Interstate, the requirement of filing a letter of intent to bid was clearly to assure that the prospective bidder would receive copies of bid materials, such as addenda. The testimony of Petitioner's witness that Petitioner's "knowledge" that Interstate, a strong competitor, was not going to submit a bid allowed Petitioner more latitude in setting a price is outweighed by the evidence of the purpose of this requirement, as set forth in the ITB and the deposition testimony of one of Respondent's witness, as well as the lower bid of Piper.
Recommendation It is RECOMMENDED that the Department of Corrections enter a final order dismissing the bid protest of Petitioner and awarding the contract to Piper. DONE AND ENTERED this 7th day of August, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of August, 2002. COPIES FURNISHED: Michael W. Moore, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Don O'Lone, Business Manager Piper Fire Protection, Inc. Post office Box 9005 Largo, Florida 33771 Susan P. Stephens, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Karen D. Walker, Esquire Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302 Michael A. Wester Interstate Fire System, Inc. 1451 South Monroe Street Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not Petitioner's facility meets the standards and qualifications to be eligible for licensure as an Adult Congregate Living Facility (ACLF).
Findings Of Fact Petitioner is the owner/operator of Old Cutler Retirement Home (Old Cutler) which is located at 19720 Old Cutler Road in Miami, Florida. Old Cutler has been functioning as an ACLF since at least 1981 and has been the subject of citations for violations of the fire and health safety codes which Respondent enforce. (Respondent's Dade County Health Report dated June 9, 1981.) On October 7, 1985, Respondent conducted a survey of Old Cutler and found the following deficiencies: the income and expense records for the facility were not available for review. services delivered for the facility by a third party contractor were not documented and placed in the residents' records. the facility did not have personnel policies and work assignments. the facility failed to provide assurances that (1) at least one staff member was on duty at all times who was certified in an approved first aid course; (2) staff that provided hygiene assistance was properly trained, and (3) staff was free of communicable disease. the facility did not have written job descriptions available for review. the employees were not furnished written policies governing conditions of employment. full bedside rails were observed in one resident's bed room. notations concerning drug disposition of a former resident's medication were not entered into the resident's file. the facility did not have policies and procedures to insure minimal leisure services for residents. the facility did not have procedures for assisting residents in making medical and related health appointments. residents' bedrooms did not have adequate space for hanging clothes. the facility did not have an adequate number of bathrooms for the residents. furniture at the facility was not kept in good repair. the facility smelled of a strong urine odor. the facility grounds were cluttered with debris and garden/construction equipment. the facility did not have a written main- tenance and housekeeping plan. Food Service irregularities (observed on October 7, 1985): the facility did not have food service procedures to provide for resident's nutri- tional care. the employee designated responsible for providing food service failed to demonstrate proper training of food service personnel purchasing sufficient food, (3) food service coordinated with other services, (4) duties were performed in a safe and sanitary manner, and (5) a knowledge of food that meets regular diets. the therapeutic diets did not meet the residents nutritional needs. there was no documentation of standardized recipes. menus were not planned, dated or posted as required. a week's supply of food was not on hand at the facility. food was not served at a safe, palatable temperature, as example, ambrosia fruit salad was kept and served at room temperature. food service was not properly carried out and the service was unsanitary in that spoiled and rotten food was stored in the refrigerator; the sinks and shelves were soiled, greasy and coated with debris; food was improperly thawed with standing hot water; hair restraints were not used; and at least one food service employee was observed smoking while preparing food. Additionally, on October 7, 1985, the laundry area did not provide the required one hour flame separation from the remainder of the facility. Also, the following fire safety irregularities were noted during the October 1985 survey: a manually operated fire alarm system with activating handles at each exit were not provided. smoke detectors powered by the electric current and interconnected to the fire alarm system was not provided. reports were not provided showing that the fire alarm system was tested quarterly. two means of egress are not provided for rooms 1 and 6. twenty-minute fire rated doors are not provided at all residents' doors. a commercial hood vented to the outside with an automatic extinguishing system is not provided. a key operated lock from the inside appears on the door of Room No. 13. there are obstructions in front of egress doors in room 3 and the dining area. the electric source supply to emergency lighting is provided by an extension cord. Petitioner has placed a mobile home immediately alongside the main facility at Old Cutler and the mobile home is situated closer than ten (10) feet from all sides of Old Cutler. The curtains, drapes, interior walls and ceilings of the mobile home do not provide either the requisite flame spread or are not flame proof as required. The mobile home is not equipped with approved smoke detectors in each room and the east/west end exits are either blocked or difficult to egress. Finally, there are no approved steps at the east exit of the mobile home. These conditions have existed in the mobile home since at least April 1981 and Petitioner has failed to take any corrective action to bring the above-noted irregularities into compliance (Respondent Exhibit 5). Respondent sent its staff along with members of the Ombudsman Council to again survey Petitioner's facility on March 9, 1987. As of that date, Petitioner has not shown any intent to correct the numerous deficiencies noted herein. Additionally, Petitioner advised Human Services Program Supervisor Alvin Delaney that she did not intend to bring her facility into compliance. As noted in the Appearances section of this Recommended Order, Petitioner did not appear at the hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: Respondent enter a Final Order denying Petitioner's application for licensure as an Adult Congregate Living Facility and cancel the conditional license which was issued to Petitioner. RECOMMENDED this 2nd day of April 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of April 1987.
The Issue Whether Respondent, Firehouse Subs/Wilson and Gettings Investment,1/ is liable to Petitioner, Bryan Siegel, for discrimination based on his religion, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01– and 509.092, Florida Statutes.
Findings Of Fact Petitioner is a 24-year-old male of the Jewish faith. He was employed as a sandwich maker at the Firehouse Subs franchise located at 2217 East Colonial Drive in Orlando, Florida, from January 20, 2011, until he was terminated on June 4, 2012. Petitioner claims he was subjected to a hostile work environment and unlawful termination based on his religion. Wilson and Gettings Investment (WGI) is the corporate entity under which Perry Wilson owned the subject Firehouse Subs franchise which employed Petitioner. WGI employed no more than 13 employees on any work day during the time Mr. Wilson owned the franchise. This particular Firehouse Subs was a busy location, particularly at lunchtime. Co-workers described the job as fast-paced at lunchtime, but more relaxed later in the day. Employees talked and socialized in the evenings. Some employees teased each other and made up nicknames for one another. For example, two employees, Ariel Wilkinson and Leticia Valentin, nicknamed Petitioner “Princess Brianna.” Petitioner described Ms. Wilkinson as a good friend. Mr. Wilson was aware that Ms. Wilkinson and Ms. Valentin used the nickname “Princess Brianna” for the Petitioner, but asked them to stop only if it offended Petitioner. There was no evidence either that Mr. Wilson inquired with Petitioner whether the nickname was offensive or that Petitioner complained of the nickname. Petitioner worked hard and put in a lot of hours at Firehouse Subs while attending school at the University of Central Florida. He is described by his co-workers as a hard worker during the hectic lunch-hour shifts. Petitioner excelled in some aspects of his job. For example, he was the fastest at accurately pre-portioning meats for each type of sandwich. On March 14, 2011, less than two months after he was first employed, Petitioner received a verbal warning. The Personnel Action Form states that although he had passed a test on menu knowledge, he was having problems reading the tickets. Petitioner was assigned a short training course in executing menu tickets. The general manager, Sophia Pernicano, noted that “once Bryan completes this course I see no further problems arising.” However, Petitioner developed additional problems at work, particularly displaying a poor attitude toward authority. On August 27, 2011, approximately seven months after Petitioner was hired, Ms. Pernicano gave Petitioner a written warning for cursing at her while he was working on the line. She described Petitioner as having a “mouthy attitude” which would not be tolerated. Approximately five months later, on January 20, 2012, Petitioner was written up for what is described as a “verbal altercation” with the store’s compliance director, Denise Miller. Following a meeting with Ms. Miller and Mr. Wilson, Ms. Pernicano presented Petitioner with two options: (1) take a one-week suspension, or (2) write a letter of apology to Ms. Miller. On the Personnel Action Form, Ms. Pernicano noted, Bryan is a great employee when he feels the need to be, I would like him to be a great employee at all times. The cursing, the bad attitudes, the flipping of the meat it has all got to stop. Otherwise I am left with no options but to end our Firehouse relationship. Petitioner chose to write the letter of apology and was allowed to return to work.2/ On June 4, 2012, Petitioner experienced an anxiety attack while driving to work. He testified that he remained in his car for some time after arriving at the restaurant in an attempt to collect himself, then entered the restaurant to work his shift. Petitioner testified that the panic attack continued while working his shift. He described the feeling of the walls closing in on him and decided he could not complete his shift. Petitioner reported to the shift supervisor, Ms. Wilkinson, that he was having a panic attack and needed to leave. Petitioner left without completing his shift. Ms. Wilkinson reported to Ms. Pernicano later that day that Petitioner had notified her he was not feeling well and needed to leave. After leaving the restaurant on June 4, 2012, Petitioner drove home, gathered some clothing and other belongings, then drove to his family home in Fort Lauderdale. Petitioner was seen by his family physician on June 7, 2012, and was diagnosed and treated for an anxiety disorder. Although the details are unclear, Petitioner was terminated by Mr. Wilson on June 4, 2012, after Mr. Wilson learned that Petitioner had left the restaurant during his shift. During his drive from Orlando to Fort Lauderdale, Petitioner contacted Mr. Wilson via text message. A series of text messages ensued which culminated in Mr. Wilson’s informing Petitioner he was terminated. Other than his communication to Ms. Wilkinson on June 4, 2012, Petitioner never reported to anyone at Firehouse Subs, prior to his termination, that he was experiencing anxiety or panic attacks. Petitioner returned to the restaurant several days later to turn in his uniform and pick up his final paycheck. At that time, Petitioner also signed and received a copy of the Personnel Action Form documenting his termination. Hostile Work Environment Petitioner alleges that he was subject to unlawful harassment by Mr. Wilson on the basis of Petitioner’s Jewish faith. Petitioner testified that Mr. Wilson introduced him as “the Jew” to his friends who would visit the restaurant, told Petitioner he was in “Jew heaven” in response to Petitioner’s skill at pre-portioning meats, and made anti-Semitic jokes on a regular basis. Petitioner further testified that on May 9, 2011, Mr. Wilson entered a sandwich order at the cash register and handed the receipt to Petitioner to make the sandwich he ordered. The receipt, which was received into evidence, notes the date the order was placed, the order number, and the description of a steamer sandwich with hot peppers, spicy mustard, and no dressing. In the space where the customer’s name would appear are the words “Now Ginger Jew.”3/ Petitioner testified he made the sandwich, put the receipt in his pocket, and moved on to another work station. He further testified he showed the receipt to another co-worker, Neal Faulkner. Mr. Wilson testified that he did not prepare the offensive receipt and could not testify with certainty whether he was present at the restaurant on the date in question. Further, Mr. Wilson testified that any employee would have had access to the cash register to ring up the order. The Employee Handbook for Firehouse Subs of Colonial (Handbook),4/ with which Petitioner was familiar, provides, with respect to harassment: If you believe that you have been subjected to harassment or if you believe you have witnessed any form of harassment, you should immediately contact your General Manager. An allegation against your own supervisor should be filed with the Director of Human Resources. Your complaint will be immediately and thoroughly investigated in a professional manner. There will be no retaliation against any employee who files a complaint in good faith or who assists in providing information relevant to a claim of harassment, even if the investigation produces insufficient evidence to support the complaint. Petitioner did not report to either his General Manager or Human Resources Director that that he was being harassed, demeaned, or otherwise discriminated against. In fact, Petitioner did not share with any co-worker, shift supervisor, or any other employee of WGI the fact that he was being harassed, demeaned, or otherwise discriminated against. Petitioner testified he did not report the harassment to Ms. Pernicano, the general manager, because she was in a personal relationship with Mr. Wilson. Petitioner stated he feared reporting it to Ms. Pernicano would jeopardize his job. Petitioner did not produce any witnesses to corroborate his hearsay testimony that Mr. Wilson referred to Petitioner as “the Jew,” stated he was in “Jew heaven,” or made anti-Semitic jokes during his tenure at Firehouse. At final hearing, Mr. Wilson denied having made any anti-Semitic jokes or otherwise harassing Petitioner on the job. Respondent introduced testimony of two of Petitioner’s co- workers who denied having heard any such statements by Mr. Wilson. The receipt for the sandwich order stating “Now Ginger Jew” is some evidence of a statement made by some employee of WGI in derogation of Petitioner’s Jewish faith. Unlawful Termination Petitioner alleges that his termination was unlawful, based solely on his religion and Mr. Wilson’s alleged prejudice against Jewish people. Respondent maintains Petitioner was terminated because he “abandoned his shift” on June 4, 2013, which, together with his previous disciplinary issues, constituted grounds for termination. According to the greater weight of the testimony, “abandoning a shift” means reporting for a scheduled shift but not completing the scheduled shift. The Handbook does not use the term “abandon shift.” With respect to attendance and punctuality, the Handbook states: It is important for you to report to work on time and to avoid unnecessary absences. Firehouse Subs of Colonial recognizes that illness or other circumstances beyond your control may cause you to be absent from work from time to time. However, frequent absenteeism or tardiness may result in disciplinary action up to and including discharge. Excessive absenteeism or frequent tardiness put an unnecessary strain on your coworkers and can have a negative impact on the success of Firehouse Subs of Colonial. You are expected to report to work when scheduled. Whenever you know in advance that you are going to be absent, you should notify your General Manager. If your absence is unexpected, you should attempt to reach your General Manager as soon as possible, but in no event later than one hour before you are due at work. In the event your General Manager is unavailable, you must speak with a shift manager/Shift Leader. If you must leave a message on voicemail, you must provide a number where your supervisor may reach you if need be. You are expected to be at your workstation at the beginning of scheduled shift. If you are delayed, you must call your General Manager to state the reason for the delay. As with absences, you must make every effort to speak directly to a manager. Regular delays in reporting to work will result in disciplinary action up to and including discharge. Further, the Handbook provides: If you become ill or get hurt while at work, you must notify your General Manager immediately. Failure to do so may result in a loss of benefits under the state workers’ compensation law. Firehouse Subs of Colonial is concerned about the physical well-being of its staff and encourages all employees to have periodic physical examinations. Check your Health Plan documents to determine coverage. Firehouse Subs of Colonial may also request that a physician examine you whenever conditions make this desirable for your protection or that of Firehouse Subs of Colonial. An additional section of the Handbook, which neither party addressed, is also relevant here. The section titled “Notification Procedures” provides as follows: When you are absent from work if your absence has not been previously scheduled, you must personally notify your General Manager as soon as you are aware that you will be late or unable to report to work. Leaving a voicemail, or a message with another staff member, does not qualify as notifying your supervisor –- you must personally speak with him or her. When absence is due to illness, Firehouse Subs of Colonial reserves the right to require appropriate medical documentation. Excessive absenteeism or tardiness can result in discipline, up to and including discharge. Petitioner maintains that he became ill at work on June 4, 2013, notified his shift supervisor, and was given permission to leave. He denies that he abandoned his shift. The evidence conflicted as to whether Petitioner failed to follow established procedure for leaving during a scheduled shift. Ms. Pernicano first testified that Petitioner did not comply with the company’s policy to notify the general manager so that the position could be filled for that shift.5/ On cross- examination, however, Ms. Pernicano testified Petitioner complied with the written policy to speak with the shift leader in the event the general manager was unavailable.6/ Petitioner’s absence on June 4, 2012, was not previously scheduled, Petitioner made no attempt to reach Ms. Pernicano, and Petitioner introduced no evidence that Ms. Pernicano was unavailable. Despite Ms. Pernicano’s equivocal testimony, the greater weight of the evidence supports a finding that Petitioner left his scheduled shift without following established procedure. In addition, Petitioner had been previously disciplined for insubordinate behavior on at least two occasions, a fact which he does not deny. Petitioner did not prove that he was terminated based upon his religion. Respondent did prove that Petitioner was terminated for a lawful reason.
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 dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 13th day of August, 2013.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Kevin Hinckley, at all times relevant to the Administrative Complaint, was licensed to operate Creative Living #2, 225 26th Avenue, Northeast, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes. On January 3, 1985, Earl Wright, Demaris Hughes and Bernard Dunagan, personnel from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Creative Living #2. Mr. Wright was primarily responsible for conducting the administrative aspects of the survey, such as paperwork and staffing matters. Ms. Hughes was employed as a public health nutrition consultant and was responsible for surveying the nutritional aspects of the facility. Mr. Dunagan was employed as a fire safety specialist and was responsible for conducting the fire safety aspect of the survey. During the survey of January 3, 1985, the inspection team determined that various deficiencies existed in Respondent's facility. An exit conference was conducted by the inspection team with a representative of Creative Living #2 upon. completion of the survey wherein the alleged deficiencies were explained. Certain time-frames were established in which the facility was to correct the deficiencies noted in the survey. The deficiencies noted during the January 3, 1985 survey were as follows: Deficiency Correction Date a. Failure to maintain an admission February 3, 1985 and discharge record. b. Failure to maintain employee February 3, 1985 time-sheets. c. Failure to have policies and February 3, 1985 procedures to ensure leisure services for residents. Failure to ensure that supper February 3, 1985 meal and breakfast were no more than 14 hours apart. e. Failure to keep menus on file February 3, 1985 for six months and no substitutions were documented. f. Failure to keep the kitchen February 3, 1985 and equipment in good repair. g. Failure to ensure that all February 3, 1985 residents' sleeping rooms opened directly into a corridor, common use area or outside. h. Failure to have a grab bar February 3, 1985 in the shower. i. Failure to keep the building in February 3, 1985 good repair and free of hazards as evidenced by the following: the kitchen ceiling needed plastering, and (2) the rear bed- room window was cracked. Failure to keep all plumbing February 3, 1985 fixtures in good repair, properly functioning and satisfactorily protected to prevent contamination from entering the water supply as evidenced by two back-flow devices not being installed in order to prevent contamination on outside faucets. Failure to have an automatic March 3, 1985 sprinkler system in the facility. (a two-story unprotected wood-frame building.) 1. Failure to maintain a January 10, 1985 fire alarm system that could be shown to work when tested. m. Failure to provide either a January 10, 1985 one hour fire resistant rating or automatic fire protection for storage under the stairs in the facility. A follow-up visit was made by Earl Wright and Demaris Hughes on March 14, 1985 and by Bernard Dunagan on March 20, 1985. The follow-up visits were made by the Department of Health and Rehabilitative Services to determine the status of deficiencies noted during the initial survey of January 3, 1985. During the follow-up survey on March 14, 1985, an argument ensued between Mr. Hinckley and Ms. Hughes. The argument took place in the dining room and shortly thereafter the survey was terminated. Although the majority of the re- inspection was performed, the argument resulted in the survey being terminated short of completion. Because the survey was concluded before completion, the inspectors did not verify action taken by Respondent to correct certain deficiencies. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain "administrative" deficiencies noted by Mr. Wright. Specifically, the facility: 1) did not have an admission and discharge record; 2) did not have employee time-sheets; and, 3) did not have established policies and procedures to ensure leisure services for residents. Further, a resident's sleeping room in the house did not open directly into a corridor, common use area or outside, and two back-flow plumbing devices were not installed in order to prevent contamination from entering the water supply. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain deficiencies noted by Ms. Hughes which concerned diet and nutrition. Specifically, the facility failed to keep menus on file for six months and note documentation of substitute foods. At the time of the follow-up survey on March 20, 1985, the facility had not corrected a number of deficiencies noted by Mr. Dunagan which concerned fire safety. In particular, the facility: (1) failed to have an automatic sprinkler system; (2) failed to maintain a fire alarm system that could be shown to work when tested; and (3) failed to provide either a one hour fire resistant rating or automatic fire protection for an area under the stairs in the facility which was used as storage. Mr. Hinckley ran the facility out of his home and operated it on a "family concept." A resident could eat whenever he or she was hungry. Normally, the evening meal was served at 5:00 P.M. or 6:00 P.M., and a snack was provided at 8:00 P.M. or 9:00 P.M. Breakfast was available from 6:30 A.M. through 7:00 A.M. for the Respondent's children. The residents could join the family for breakfast, or, if they wished to "sleep-in," could have breakfast later. ~ An upstairs toilet had overflowed and caused the ceiling plaster in the kitchen below to buckle. On March 14, 1985, the plastering was repaired but had not been painted. The cracked bedroom window had been repaired. Following the initial survey, Mrs. Hinckley called Mr. Wright to talk about the shower grab bar. Mr. Wright told her that she could put adhesive skid grips in the shower. From her conversation with Mr. Wright, Mrs. Hinckley believed that she could substitute adhesive skid grips for the grab bar because there was a sit-down commode. Adhesive skid grips were installed in the shower. Respondents, in a separate action, lost their license as an adult congregate living facility in November, 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a fine in the amount of $600 be imposed upon Kevin Hinckley d/b/a Creative Living #2. DONE and ORDERED this 6th day of May, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1986. COPIES FURNISHED: Carol Wind, Esquire HRS District V Assistant Legal Counsel 2255 East Bay Street Clearwater, Florida 33518 Jack S. Carey, Esquire 575 2nd Avenue South St. Petersburg, Florida 33701 William J. "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Facts Submitted by the Petitioner: Adopted in Finding of Fact 1. Addressed in Conclusions of Law. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 8. Rejected as unnecessary in view of Finding of Fact 13. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as subordinate. Rejected as a recitation of testimony. Rejected as a conclusion of law. Adopted in Finding of Fact 14. Addressed in Conclusions of Law section of Recommended Order.
