The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under the Department's jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Petitioner was employed in a position of trust or responsibility by Polk Opportunity Council (the Council) located in Polk, County, Florida. The Council cared for children which required licensure by the Department. Petitioner's job with the Council required that she be screened in accordance with level 2 standards for screening set forth in Chapter 435, Florida Statutes. The screening revealed Petitioner's arrest on September 14, 1992, for spouse battery (domestic violence), under Section 784.03, Florida Statutes. The screening further revealed that on December 3, 1992, Petitioner: (a) entered a plea of nolo contendere to the charge of spouse battery, a misdemeanor; (b) was adjudicated guilty and; (c) placed on probation for a period of one year. After being placed on probation, Petitioner successfully completed, although not timely, the community service hours and the Domestic Violence Program required by the court's probation order. Petitioner timely completed all other requirements of her probation. On January 5, 1994, the court terminated Petitioner's probation but due to the untimely completion of the Domestic Violence Program and the community service hours the record reflects that her probation was terminated unsatisfactorily. The arrest and subsequent adjudication of guilt disqualified Petitioner from employment in a position of trust or responsibility. Subsequent to the screening, the Department notified Petitioner and the Council of Petitioner's disqualification. Thereafter, Petitioner was discharged from her employment with the Council. The Council has agreed to hire Petitioner back in her old position if she is granted exemption from disqualification by the Department. Petitioner would be working in the kitchen in the morning and working with children in the afternoon. There is no record of Petitioner being charged with any other crime (domestic violence or otherwise) since her arrest on September 14, 1992. Petitioner is no longer married to the person involved in the incident on September 14, 1992, which resulted in Petitioner's arrest. In fact, her former husband was charged and served time with the Department of Corrections for subsequently beating Petitioner. Since Petitioner completed her probation, she has worked to support her children. Petitioner is presently supporting her seven children. It appears that the Department or its predecessor, Department of Health and Rehabilitative Services, has, since Petitioner's completion of probation, allowed Petitioner to care for children in her home. Petitioner has worked hard and diligently to stay off of welfare, to support her children, and to better her and her children's position in life. In addition to her regular work, Petitioner is always first to volunteer for charitable projects. Petitioner has been sufficiently rehabilitated so as to be employed in a position of trust and responsibility and that she will not present a danger if allowed to be employed in a position of trust or responsibility
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 19th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1999. COPIES FURNISHED: Stacey C. Andrews, pro se Post Office Box 3298 Lakeland, Florida 33802 Jack Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33803 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner is the Department of Health and Rehabilitative Services. The Respondent is Elizabeth Joseph, licensed at all times pertinent to these proceedings to operate Jas Manor, an adult congregate living facility in Miami, Florida. Petitioner's employee, Elizabeth Baller, conducted an inspection of the Respondent's facility on September 18, 1986, and discovered seven persons in residence. This number of individuals exceeded the licensed capacity of Respondent's facility by one person. Ms. Baller recited the initials of those residents present in Respondent's facility on that date. Respondent's composite exhibit number 1, consisting of what are alleged to be copies of admission and discharge records, corroborates Ms. Baller's finding. The Respondent was not present at the facility at the time of this inspection. The failure of the Respondent to limit the capacity of the facility to no more than six residents posed a potential threat to the well-being of the residents. The existence of the deficiency finding was discussed with the Respondent by Baller via telephone on September 26, 1986. Ms. Baller did not visit Respondent's facility on September 24, 1986 and is without any direct personal knowledge that the number of residents in the facility on that date exceeded the licensed capacity. In the absence of such direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to the existence of any deficiency of the licensed facility on September 24, 1986. Petitioner exhibit number 1 does not conform to the statutory requirements for a class III deficiency citation as specified in section 400.419(3)(c), Florida Statutes, in that the exhibit fails to set forth the time within which the deficiency is to be corrected. Ms. Baller conducted a follow up visit on November 21, 1986, which, she contends, revealed seven residents in the facility, and a continuation of the violation cited previously in September. This contention of Ms. Baller is not supported by the weight of the evidence. Respondent's denial of the continuation of the deficiency at that time is supported by the testimony of Christine Sassone who regularly visits the facility on behalf of the church attended by her and Respondent. Ms. Sassone works with the residents of Respondent's facility, teaching arts and crafts there every evening, Monday through Friday, from 3:30 or 4 P.M. until 8:30 or 9:00 P.M. She was present at the facility on September 18 and November 21, 1986. She attests that there were only six residents present on either occasion. It is her testimony that individuals in excess of the licensed capacity on both of the dates in question may have been visitors from a neighboring facility known as the "Vet's Nest" which abuts Respondent's property. While discounting Sassone's unsupported testimony regarding the number of residents present on September 18, 1986, her testimony and that of the Respondent establish the fact that only six residents were present at the time of the follow up visit by Baller. Notably, Respondent's exhibit number 1 which supported the Petitioner's finding of seven residents in Respondent's facility on September 18, 1986, corroborates the testimony of Respondent and Ms. Sassone establishing that such deficiency was cured by November 21, 1986. The evidence fails to establish that the violation of Respondent discovered on September 18, 1986, was a repeat offense. It is found that the offense was not a repeat offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a final order finding the commission of a class III violation by Respondent, but assessing no civil penalty for the violation. DONE AND RECOMMENDED this 11th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in findings 2 and 3. Included in finding number 3, except for the last sentence relating to the visit of November 21, 1986. This sentence is rejected as not supported by the weight of the evidence. Included in finding number 3 and 9, except for the last sentence which is rejected. Rejected as unnecessary. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 N.W. 167th Street Miami, Florida 33014 Elizabeth Joseph Administrator Jas Manor 645 N.E. 131st Street North Miami, Florida 33161 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Serviced 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Relating to Case No. 89-2757 Whether Respondent failed to assure that a sufficient number of staff members were certified in an approved First Aid course (a repeat violation), in violation of Section 400.419(3)(c), Florida Statutes and Rule 10A-5.019(5)(f), Florida Administrative Code. Whether Respondent failed to sanitize multi-use eating and drinking utensils in accordance with the food service standards (a repeat violation), in violation of Sections 400.419(3)(c) and 400.441(1)(b), Florida Statutes and Rule 10A-5.020(1)(n)6, Florida Administrative Code Relating to Case No. 89-3411 Whether Respondent failed to have in its files the inspection reports for the years 1984 and 1985, in violation of Sections 400.419(3)(c)4. and 400.435(1), Florida Statutes and Rule 10A-5.024(1)(d)(2a), Florida Administrative Code. Whether Respondent failed to assure compliance with physical plant standards, by not providing a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area for one (1) sleeping room window that serves as a second means of escape, in violation of Sections 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code. Whether Respondent failed to have a fire and evacuation route plan to assure compliance with fire safety standards, in violation of Section 400.419(3)(c) and 400.441(1)(a), Florida Statutes and Rules 10A-5.023(16)(a) and 4A-40.05, Florida Administrative Code.
Findings Of Fact Case No. 89-2757: At all times relevant the dates and alleged occurrences referred to in these proceedings, Respondent, Henderson's Retirement Home, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). Respondent's facility was staffed without assurance of at least one staff member within the facility at all times who is certified in an approved first aid course. Tina Porterfield, the granddaughter of Dee Henderson, owner of Henderson's Retirement Home, although certified in an approved first aid course, was not a full time staff member. This violation occurred on September 30, 1987 and was not corrected on February 2, 1988. There was no competent evidence to show that Respondent's multi-use eating and drinking utensils were not being properly sanitized in accordance with food service standards. Case No. 89-3411: At all times relevant to the dates and alleged occurrences referred to in these proceedings, Respondent was licensed by Petitioner as an Adult Congregate Living Facility (ACLF). HRS inspection reports relating to the Respondent's ACLF facility were not provided to Respondent for the years 1984 and 1985, and therefore could not be retained in its files at the time the facility was inspected in February, 1986 and February 18, 1987. HRS inspection of the premises on February 16, 17 and 18, 1987 revealed that a window that serves a second means of escape did not provide a clear opening of 24 inches in height, 20 inches in width and 5.7 square feet in area. It was not proven where this window was located or if it was a sleeping room. Respondent was given until April 1, 1987 to correct the deficiency and the window was removed and replaced by a fire exit door when inspected on June 4, 1987. As of February 18, 1987, Respondent had a written fire and evacuation route plan prepared. A copy was posted during the time the HRS inspectors were completing their survey on February 18, 1987.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner impose a civil penalty in the total amount of $300 against Respondent pursuant to Section 400.419, Florida Statutes. DONE AND ENTERED this 15th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 89-2757, 89-3411 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's proposed findings of fact: As to Case No. 89-2757: Adopted in substance. As to Case No. 89-3411: Paragraphs 1 and 3 adopted in substance. Paragraph 2 rejected as against the weight of the evidence. COPIES FURNISHED: Linda L. Parkinson, Esquire District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson Street Suite 701 Orlando, Florida 32801 Raymond A. McLeod, Esquire McLeod, McLeod and McLeod, P.A. Post Office Drawer 950 Apopka, Florida 32704 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner, Pamela Williams, doing business as Secure Home Management, seeks a license to operate an adult congregate living facility (ACLF) in Palatka, Florida. The Respondent is an agency of the State of Florida charged with regulating the operation and practices of adult congregate living facilities and licensure thereof, together with enforcement of licensure standards contained in Chapter 400, Part II, Florida Statutes (1981). Preliminary discussions and informal meetings between representatives of the Department and the Petitioner, Pamela Williams, occurred at various times in January 1983, during which discussions the Petitioner was advised by the Department that she was required to apply for an ACLF license in order to legally operate her business. The Petitioner took the position that the facility she operates was a transient rental facility and thus exempt from the ACLF licensing provisions contained in Chapter 400, Part II, Florida Statutes, which exemption is provided for at Section 400.404(d) of that chapter. However, as a result of these informal discussions between the parties, the Petitioner ultimately elected to apply for licensure as an ACLF and did so on January 31, 1983. After further deliberations by the Department, requests for additional information and further informal negotiations and conferences, the Respondent Department ultimately elected to deny the application for licensure and so informed the Petitioner on May 4, 1983. In essence, the reasons for the Respondent's denial of the application for licensure was the belief by the agency and its representatives that the applicant Petitioner lacked the financial ability to provide continuing adequate care to residents under authority of Section 400.414(1)(b), Florida Statutes (1981). Subsequent to the denial of licensure, the Petitioner made a number of good-faith efforts to attempt to meet the Respondent's criteria for licensing in the area of furnishing proof of financial responsibility. For instance, on April 15, 1983, just before denial of licensure, a letter from Jack Allen, a financial backer of the Petitioner, was provided to the Department promising adequate financial support. That letter was admitted as Petitioner's Exhibit 1. However, the Department nonetheless elected to deny licensure, being unsatisfied that that constituted adequate establishment of financial security for the proposed licensed institution. Following the denial of the license, the Petitioner and the Respondent continued to attempt to resolve the problem regarding establishment of financial support for the institution. The Petitioner in that regard furnished the Respondent with additional documentary evidence from Jack Allen, dated May 12, 1983, and admitted as Petitioner's Exhibit 2, in which unlimited resources were promised in order to assure that the ACLF would embark on its operations on a secure financial footing. Sometime in August 1983, in part at the behest of the Respondent, the Petitioner retained an attorney, with the result that a document establishing financial worth and responsibility for operating the facility with adequate provision for care for its residents from a financial standpoint was provided the Department, with the result that after certain other informal negotiations the license was ultimately issued on October 14, 1983, authorizing Pamela W. Williams, d/b/a Secure Home Management, to operate the subject ACLF. Prior to this licensure, the Petitioner continued to operate the facility while making good-faith attempts to meet the requirements of the Department and during which time the dispute concerning whether she needed licensure or conversely whether she came under the above-described exemption was unresolved in part between the parties. It was established through Petitioner's testimony, as well as that of Lee Darden, a representative of the Division of Aging and Adult Services of HRS, that at all times pertinent hereto, before and after licensure, the residents of the Petitioner's facility received at least adequate care and that the failure of the Petitioner to be licensed did not in any way jeopardize the health, safety or well-being of any of the Petitioner's residents.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that no fine be assessed and levied upon Pamela W. Williams, d/b/a Secure Home Management. DONE and ENTERED this 10th day of February, 1984, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 10th day of February, 1984. COPIES FURNISHED: Albert W. Whitaker, Esquire Post Office Drawer D Palatka, Florida 32078-0019 James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Building H Gainesville, Florida 32601 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues in this case are whether the Respondent has violated Sections 491.009(2)(h) and (u), Florida Statutes, by failing to timely comply with a prior Board Order and, if so, the determination of an appropriate penalty.
Findings Of Fact The Respondent, David Pesek, is a licensed Marriage and Family Therapist in the State of Florida, and has been so licensed at all times relevant and material to this proceeding. His license number is NT 192. On September 7, 1988, the Petitioner filed an earlier Administrative Complaint against the Respondent in DPR Case No. 0055334. On February 14, 1990, the Respondent signed a stipulation providing for a stipulated disposition of DPR Case No. 0055334. The Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling approved the stipulated disposition at a meeting on April 27, 1990, and on Nay 23, 1990, a Final Order was rendered in DPR Case No. 0055334. The Final Order in DPR Case No. 0055334 included the following pertinent language: Respondent shall pay an administrative fine of one thousand dollars ($1,000) to the Executive Director of the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling within sixty (60) days of the filing of the Final Order herein. Respondent shall be placed on probation for one (1) year, with the condition of probation that Respondent's billing records and documents be reviewed by a consulting practitioner. The one (1) year probation shall begin to run when consulting practitioner is approved. Such consultant shall submit a written report to the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling six (6) months following the rendition of the Final Order. The consulting practitioner shall be selected by Respondent, subject to approval of the Board. Pursuant to the terms of the Final Order in DPR Case No. 0055334, the deadline for paying the administrative fine was July 23, 1990. On November 27, 1990, the Department of Professional Regulation sent a letter to the Respondent reminding him that he had not complied with the Final Order in DPR Case No. 0055334. By letter dated December 6, 1990, and received on December 13, 1990, the Respondent transmitted his check in the amount of one thousand dollars in payment of the fine. 2/ The fine was paid approximately four and a half months after it was due. By letter dated January 23, 1991, the Respondent advised the Chairman of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling of the name of a consulting practitioner who was willing to perform the review and reporting functions required by the Final Order in DPR Case No. 0055334. The letter of January 23, 1991, was two months after the deadline for the consultant's report. By letter dated April 1, 1991, the Respondent was advised by staff of the Department of Professional Regulation that his choice of a consulting practitioner had been approved, that the consultant's report would be due six months from the date of the letter, and that the Respondent's one-year probation period would begin as of the date of the letter. /3
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a Final Order in this case to the following effect: Concluding that the Respondent did not violate Section 491.009(2)(h), Florida Statutes, and dismissing Count I of the Administrative Complaint. Concluding that the Respondent did violate Section 491.009(2)(u), Florida Statutes, and finding him guilty of the violation charged in Count II of the Administrative Complaint. Imposing a penalty consisting of: (1) an administra- tive fine in the amount of $500.00 (Five Hundred Dollars), (2) issuance of a public reprimand, and (3) a six-month period of probation, which period shall begin on the first day following the Respondent's current probation period and shall be subject to such reasonable conditions of probation as may seem appropriate to the Board. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 7th day of January, 1992. MICHAEL M. PARRISH, 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 7th day of January, 1992.
The Issue The issue in the case is as set forth in the Notice of Forfeiture of Retirement Benefits dated November 10, 2005, and issued by the Department of Management Services, Division of Retirement (Respondent), to Richard Brandenberger (Petitioner).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Orange County Board of County Commissioners as a correctional officer at the county jail and participated in the Florida Retirement System (FRS). The Respondent is the state agency charged with administering the FRS. The applicable position description for employment by Orange County as a correctional officer included, in relevant part, the following description of the job duties: Supervises inmates to prevent altercations, intimidation, undesirable or illegal acts, intercedes when necessary, and to ensure the safety of the facility, other Correctional staff and the inmates. On or about October 29, 2003, a grand jury issued a one-count indictment against the Petitioner as follows: On or about July 3, 2003, in Orange County, Florida, defendant knowingly and intentionally possessed with intent to distribute and distributed Methylenedioxymethamphetamine ("MDMA") commonly known as "ecstasy", and marihuana, controlled substances listed in Schedule I of 21 U.S.C. Section 812, all in violation of 21 U.S.C. Sections 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D). The Petitioner was subsequently arrested. He then retired from employment in December 2003 and began receiving benefits from the FRS the following January. On or about January 29, 2004, the Petitioner, represented by legal counsel, entered a plea of guilty to the indictment and executed a written plea agreement that stated in material part as follows: Count Pleading To The defendant shall enter a plea of guilty to Count One of the indictment. Count One charges the defendant with possession with intent to distribute and distribution of MDMA and marihuana, in violation of 21 U.S.C. Sections 841(a)(1). * * * Elements of the Offense The defendant acknowledges understanding the nature and elements with which defendant has been charged and to which defendant is pleading guilty. The elements of Count One are: First: That defendant knowingly possessed or distributed MDMA or marihuana as charged; and Second: That defendant possessed the substance with the intent to distribute it. * * * Factual Basis Defendant is pleading guilty because defendant is in fact guilty. The defendant certifies that defendant does hereby admit that the facts set forth below are true, and were this case to go to trial, the United States would be able to prove those specific facts and others beyond a reasonable doubt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order stating that the Petitioner has forfeited his rights and benefits under the Florida Retirement System. DONE AND ENTERED this 7th day of February, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 February, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Edward Gay, Esquire 1516 East Concord Street Orlando, Florida 32803 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Respondent is licensed to operate an adult congregate living facility known as Vereene's Love and Care Home, which is located at 1304 E. Gibbs Street, Melbourne, Florida. On February 27 and March 20, 1986, two representatives of Petitioner conducted an inspection of Respondent's facility. This inspection uncovered numerous violations, including 16 Class III violations. The facility was re-inspected on March 23 and 26 and April 21, 1987, and representatives of Petitioner determined that five Class III violations remained uncorrected. The uncorrected Class III violations were the failure of Respondent: to provide at least one staff member at the facility at all times with certification in an approved first aid course and documentation that all staff are free of communicable diseases; to maintain and make available physical examination records for one resident; to provide that one resident received medication in accordance with her prescription; to ensure that a refrigerator and chest freezer had accurate thermometers; and to maintain two freezers at a temperature below 0 degrees Fahrenheit. Representatives of Petitioner discussed the violations with Respondent at the time of the 1986 inspections. The parties agreed that Respondent would have varying deadlines, ranging from immediately to May 1, 1986, within which to correct the violations. Respondent proved at the hearing that the bottle of Diazide prescribed for a Mrs. Smith bore an incorrect dosage. Respondent and Mrs. Smith both testified that the physician had orally changed the dosage to one tablet every other day. Mrs. Smith produced a bottle containing this medication and bearing this dosage. The thermometers in the refrigerator and chest freezer were constantly falling off their shelves. The thermometers were always present in these two appliances.
Findings Of Fact Elizabeth Ann Boarding Home is an adult congregate living facility licensed by Petitioner. On the evening of November 6, 1980 Leatrice Carpenter, a 56 year old female resident at this facility, fell in her room and struck the back of her head on the door leaving a cut in the scalp some two inches long running vertically near the center of the back of the head from the hairline up. She was found shortly thereafter by Rebecca McPherson (Becky), a 70 year old maid, who lived and worked at the facility. Becky saw Ms. Carpenter had a cut in the back of her head which was bleeding slowly. Becky put a wet towel around Ms. Carpenter's head, helped her into a chair which she pushed over the bed and then helped Ms. Carpenter into the bed. Becky did not notify Ms. Morris because Ms. Morris had been sick with heart trouble. Becky did dial Ms. Carpenter's daughter but received no answer. During the night Becky checked on Ms Carpenter off and on when Becky would get up. Ms. Carpenter is subject to epileptic seizures; however, her malady is under control with medication consisting of phenobarbitol and dilantin. Despite the medication she is still subject to focal seizures during which her eyes roll back but she retains control of her other bodily functions. Ms. Carpenter is also a member of the Senior Citizens Day Treatment Program run by St. Vincent's Hospital. She and others similarly unable to fully take care of themselves are transported to St. Vincent's Monday through Friday where they are placed in programs to occupy their day and help them cope with their situation. Ms. Carpenter is also given her medication of phenobarbitol and dilantin at St. Vincent's. She is given only one dosage to take with her when she leaves St. Vincent's in the afternoon. When Ms. Carpenter did not get off the bus at St. Vincent's the morning of November 7, Linda Hartley, the LPN in charge of Ms. Carpenter while she is at St. Vincent's, became concerned and went to the facility to find out what was wrong. When she arrived she found Ms. Carpenter in bed with the towel still wrapped around her head. Ms. Carpenter was comfortable and alert. When she removed the towel Ms. Hartley observed dried blood on the towel and blood-matted hair on the back of Ms. Carpenter's head. She saw the cut in Ms. Carpenter's scalp was not bleeding but believed it required medical attention. She talked to Becky and to Ms. Carpenter who told her the latter had fallen the previous evening shortly after supper and thereby obtained the injury. Ms. Hartley got Ms. Carpenter's daughter's (Ms. Watson) telephone number and returned to St. Vincent's to call Ms. Watson's residence. When she didn't get an answer she called the school at which Ms. Watson taught and left a message for Ms. Watson to call her as soon as possible. Both of Ms. Watson's phone numbers were in the St. Vincent's records for Ms. Carpenter. Early after lunch Ms. Watson returned Ms. Hartley's call and was told about her mother's accident. Ms. Watson proceeded to the facility to her mother who she found still in bed. When she saw the cut on Ms. Carpenter's head she helped her dress and took her to the emergency room at St. Vincent's where the wound was cleaned, dressed and sutured. This emergency room treatment is recorded on Exhibit 4. Eight stitches were required to close the cut. In late January, 1981, after Ms. Carpenter had been moved to a different adult congregate living facility, St. Vincent's Day Care Center reported to Petitioner the events surrounding the injury Ms. Carpenter had received. Later the same day Ms. Hartley called Petitioner to confirm the information (Exhibit 1). Two days later, on January 28, 1981 Ms. Watson complained to Petitioner regarding the failure of the facility to provide proper medical treatment when her mother was injured (Exhibit 1). An investigation conducted by Petitioner confirmed the facts above noted and resulted in the February 17, 1981 letter notifying Respondent of the intent to impose an administrative fine. Then the investigator talked to Ms. Morris, the owner of the facility, she found it difficult to focus Ms. Morris' attention on the November incident involving Ms. Carpenter. Ms. Morris recalled a fall Ms. Carpenter had taken in April, 1980 while she was away from the facility and kept referring to this incident as she was being questioned about the November accident. No notation regarding the current accident had been entered in the facility's records.
Findings Of Fact By letter dated February 3, 1986, which was sent certified, returned receipt requested, Petitioner was advised that her application for an initial license to operate an ACLF was denied based on Respondent's determination that the facility Administrator, Margaret Staggers, was not of suitable character to operate an ACLF pursuant to Sections 40-0.414(2)(a) and (b), Florida Statutes. Petitioner was specifically advised that the determination was based on the fact that on September 16, 1985, Margaret Staggers pled no contest to a felony charge of adult abuse, pursuant to Section 827.09(1), Florida Statutes, and was convicted of the offense. (State v. Margaret Staggers, Case No. 85-8490). In fact, Petitioner entered a plea of nolo contendere to the felony charge of adult abuse and adjudication was withheld. The thrust of Petitioner's challenge to denial of her license application is that since adjudication was withheld, there was no conviction and therefore for Respondent to state that she was convicted, as a basis for denials was improper. It is true, as Petitioner urges, that she pled no contest to the charge of adult abuse and adjudication was withheld rather than the stated reasons that Petitioner was convicted of the charge of adult abuse. However, Respondent also alleges in its denial letter dated February 3, 1986, that the Department determined that Petitioner's initial license to operate an ACLF was being denied based on its determination that Petitioner is not of suitable character to operate an ACLF pursuant to Sections 400.414(2)(a)(b), 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 enter a Fina1 Order denying Petitioner's application for licensure to operate an Adult Congregate Living Facility. RECOMMENDED this 23rd day of July, 1987, 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 23rd day of July, 1987. COPIES FURNISHED: Michael O. Mathis, Esquire Office of Licensure & Certification Department of HRS Post Office Pox 210 Jacksonville, Florida 32231 Ira M. Witlin Esquire Suite 107 17555 South Dixie Highway Miami, Florida 33157 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
