The Issue Whether Petitioner was discriminated against based on his race in violation of Chapter 760.10, Florida Statutes.
Findings Of Fact Petitioner, Fabian L. Dixon, is an African-American male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Children and Families as a Unit Treatment and Rehabilitation Specialist–Forensic Corrections at Florida State Hospital, Chattahoochee, Florida. Petitioner was aware of Florida State Hospital’s strict policies regarding Falsification of Records or Statements; Willful Violation of Rules, Regulations or Policies and Conduct Unbecoming a Public Employee. Petitioner was also aware that violations of such policies could result in dismissal of the employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. 4. On June 22, 2001, at 8:32 a.m. and 8:33 a.m., Unit 21 received two faxed copies of Inter Agency Leave Transfer forms from Petitioner, each donating twenty-four hours of sick leave for a total of forty-eight hours and both purportedly signed by Norman Torres. Mr. Torres subsequently discovered that over twenty-four hours had been deducted from his sick leave balance, and discovered that forty-seven hours had been used by Fabian L. Dixon. Mr. Torres then informed his timekeeper that he only donated twenty-four hours of sick leave to Petitioner. In reviewing the sick leave donation forms it appeared the date was changed on one of the forms, then the two forms were faxed to Unit 21. Written statements from Mr. Torres indicated that he only donated twenty-four hours of sick leave to Petitioner. Because of the serious nature of the violation, and given Petitioner's past history of discipline, Respondent terminated Petitioner on September 21, 2001. The employment decision was not based on Petitioner's race and was consistent with Respondent’s disciplinary policy. On October 1, 2001, AFSCME elected to file a grievance on behalf of Petitioner under the provisions of the Master Contract between the State and the American Federation of State, County and Municipal Employees. The grievance was initially reviewed by the Department of Children and Family Services and it was determined that there was cause for Petitioner’s dismissal. The grievance was then appealed to Step 3 of the grievance procedure, which provided for review of agency action by the Department of Management Services. The issue determined at Step 3 was whether the Department had just cause to discipline Petitioner. Review of the Department’s actions revealed that the Department had just cause to discipline Petitioner and that the penalty imposed was within the range for each charged violation. The grievance and relief requested was denied. On December 4, 2001, a “Request for Arbitration” was filed by AFSCME on behalf of Petitioner and a hearing was scheduled for June 2, 2003. On May 20, 2003, AFSCME filed a Notice of Withdrawal of Arbitration. In response to the notice, the hearing was cancelled and an Order Closing the File of the Department of Management Services was issued on May 20, 2003. At hearing, Petitioner admitted that he altered the Inter Agency Leave Transfer Form, but contended that the hospital did not terminate other white employees for similar offenses. However, Petitioner failed to present any independent testimony to corroborate this claim and made absolutely no showing that there was any relationship between his race and his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 23rd day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 23rd day of July, 2003. COPIES FURNISHED: Fabian L. Dixon 4634 Century Road Greenwood, Florida 32443 Kathi Lee Kilpatrick, Esquire Florida State Hospital Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10157 filed by Tallahassee Medical Center, Inc. d/b/a Capital Regional Medical Center (“CRMC”) and CON application number 10156 filed by Bay Hospital, Inc. d/b/a Gulf Coast Medical Center (*GCMC”). 1. CRMC filed a CON application which sought the establishment of a 12-bed comprehensive medical rehabilitation unit within its hospital located in Leon County, Florida, Service District 2. The Agency denied CRMC’s CON application 10157. 2. GCMC filed a CON application which sought the establishment of a 20-bed comprehensive medical rehabilitation unit within its hospital located in Bay County. Florida, Service District 2. The Agency denied GCMC’s CON application 10156. 3. Both parties filed a petition for formal hearing challenging the Agency’s denials of their respective CON applications. 4. Both parties have since voluntarily dismissed their petitions for formal hearing. 5. Based upon these voluntary dismissals, the Division of Administrative Hearings entered an Order Closing Files in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of CRMC’s CON application 10157 is UPHELD. 7. The denial of GCMC’s CON application 10156 is UPHELD. ORDERED in Tallahassee, Florida on thie 2 day of Crfebe_ . 2013. hob Py eclets Elizabeth Dudk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review, which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f 3S day of /Voye—he/ . 2013. Richard J. Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) James H. Peterson, IE] Administrative Law Judge Division of Administrative Hearings | (Electronic Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for CRMC and GCMC (U.S. Mail) R. Terry Rigsby, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2"! Floor Tallahassee, Florida 32301 Counsel for HealthSouth { (US. Mail)
Findings Of Fact Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2) There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner) While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1) On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3) On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2) In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner abandoned his position and resigned from the Career Service. DONE and ENTERED this 2nd day of August, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 August, 1988. APPENDIX The following constitute rulings on the proposed findings of fact submitted by the panties to this case. Petitioner Accepted. Accepted, however, letter indicated that continued absence would constitute abandonment. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination). Accepted. Accepted. Rejected, irrelevant. Accepted, however, such leave must receive prior approval. Accepted. Accepted. Accepted. Rejected, irrelevant. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return. Respondent Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected, unnecessary. COPIES FURNISHED: Kathy R. Newman, Esquire Legal Services of North Florida, Inc. 211 East Jefferson Street Quincy, Florida 32351 Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning Certificate of Need ("CON") Application No. 10094 to establish a 24-bed adult inpatient psychiatric hospital and CON Application No. 10095 to establish a 26-bed adult inpatient psychiatric hospital, both of which were filed by HAVEN BEHAVIORAL SERVICES OF FLORIDA, LLC (hereinafter “Haven”) in the Second Batching Cycle of 2010. The Agency preliminarily denied both of Haven’s CON applications. Thereafter, Haven timely filed a Petition for Formal Administrative Hearing with respect to the denials in CON 10095, DOAH Case No. 11-265, and CON 10094, DOAH Case No. 11-267, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”). On February 14, 2011, the Intervenor, The Ocala Behavioral Health, LLC d/b/a The Vines Hospital, filed a Motion to Consolidate DOAH Case Nos. 11-265 and 11-267. On March 2, 2011, DOAH issued an Order of Consolidation consolidating both cases. On March 8, 2011, Haven filed a Notice of Voluntary Dismissal withdrawing its CON applications in DOAH Case Nos. 11-265 and 11-276. On March 10, 2011, DOAH issued an Order Closing Files as a result of the voluntary dismissals. It is therefore ORDERED and ADJUDGED: 1. The voluntary dismissals by Haven and the Order Closing Files by DOAH are hereby acknowledged and accepted. 2. The above-styled cases are hereby closed. DONE and ORDERED this (ZA. day of Brit , 2011, in Tallahassee, Florida. ELIZABETH PUDEK, Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: The Respondent, Scarlet Manor, Inc., d/b/a Scarlet Manor is located at 13009 Lake Carl Drive, Hudson, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate an ACLF (facility) at 13009 Lake Carl Drive, Hudson, Pasco County, Florida, housing a maximum of 40 residents. Ray Dorman is the owner of Scarlet Manor and has operated the facility since 1984. The facility primarily serves clients who are or have been diagnosed as suffering from a mental illness. On January 14, 1994, the Agency conducted a biennial survey of the facility and found violations in 68 categories of Class III deficiencies. During an exit interview on January 14, 1994, following the completion of the biennial survey, the Respondent's employee was advised of the deficiencies and was told that the deficiencies had to be corrected by February 14, 1994. The Agency reported the results of its biennial survey in a Summary of Deficiencies For ACLF Licensure Requirements (Summary of Deficiencies). A copy of the Summary of Deficiencies was furnished to the Respondent, who acknowledged on February 21, 1994, that a copy of the Summary of Deficiencies had been received on February 19, 1994. As indicated by the Summary of Deficiencies, a large number of the deficiencies were cited due to the unavailability of records at the time of the biennial survey. The records were kept at Ray Dorman's residence rather than the facility and Mr. Dorman was not available on the day of the survey to produce the records. Another large number of the deficiencies pertain to record keeping, and one would have to strain to show that such deficiencies, individually or jointly, "indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents". At the time Respondent acknowledged receipt of the Summary of Deficiencies it requested an extension for correcting the deficiencies from February 14, 1994, until March 21, 1994. The Agency granted the request for extension. The Respondent did not request any further extension. On March 21, 1994, the Agency revisited the facility and determined that 15 deficiencies remained uncorrected. The Respondent was again provided with a Summary of Deficiencies which, under column (4), indicated March 21, 1994 as the date of revisit, the identifying number of the deficiency and whether the deficiency was corrected or not corrected on the date of revisit. By letter dated July 1, 1994, the Agency denied Respondent's application for renewal of its license to operate the facility which had expired on March 11, 1994. The specific basis for the Agency's denial was the Respondent's failure to maintain minimum standards for an ACLF as evidenced by the Respondent's failure to correct the 15 deficiencies previously identified in the Summary of Deficiencies as not being corrected within the Agency's extended time of March 21, 1994. The letter identified and listed only 11 uncorrected deficiencies. The difference in numbers of deficiencies in the Summary of Deficiencies (15) and those listed in the denial letter (11) results from the Agency combining deficiencies ACLF300, ACLF301 and ACLF303 as number 3; above combining deficiencies ACLF702 and ACLF703 as number 4 above; and failing to list deficiency F.S.28, a catch all deficiency, pertaining to the failure to meet all federal, state and local codes as evidenced by the other listed deficiencies. No documentation of radon testing. Deficiency ACLF203 in the Summary of Deficiencies alleges that the facility did not have proof that radon testing as mandated by Section 400.056, Florida Statutes, has been conducted. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent did not have documentation of radon testing for the facility because there had been no testing of the facility for radon. During the interim between January 24, 1994, and March 21, 1994, the Respondent was in the process of engaging someone to test the facility for radon. However, due to the cost of testing the facility for radon and the availability of people certified to test for radon, the Respondent was unable to have the radon test completed by March 21, 1994, but Respondent did have the radon test (analysis) of the facility completed and documentation available on March 28, 1994. No documentation that all employees are free from signs and symptoms of communicable disease. Deficiency ACLF508 in Summary of Deficiencies alleges that on January 14, 1994, staff did not appear to be free from apparent signs and symptoms of communicable diseases, as documented by a statement from a health care provider, in that there was no statement for five of the six employees reviewed; three of whom had been employed over 30 days. Also it was noted that two of the employees had T. B. and VDRL tests only. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent failed to produce certification from a health care provider certifying that employees Cheryl O'Shell, Cindy Plunkett and Arlene Hutchinson, who had been employed for over thirty days, were free of communicable diseases. Apparently the other four employees either had the required certification or had not worked for the Respondent over 30 days. Rule 10A-5.0131(2)(cc), Florida Administrative Code, defines a health care provider as physician duly licensed under Chapter 458 or 459, Florida Statutes, or an advanced registered nurse practitioner (ARNP) duly licensed under Chapter 464, Florida Statutes. On March 21, 1994, at the time of the Agency's revisit, facility employee Cheryl O'Shell had test results but no certification from a health care provider. On March 21, 1994, facility employees Arlene Hutchinson and Cindy Plunkett had test results and a certification signed by registered nurse rather than an health care provider. This deficiency has subsequently been corrected. Appropriate resident contracts were not on file or did not contain required elements. Deficiency ACLF300 in the Summary of Deficiencies alleges that: (a) a female resident had signed the resident contract on May 4, 1989, however, a legal guardian was appointed January 17, 1992 and the contract was not re- executed; and (b) another female resident did not have an executed contract in her record available for review. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Facility resident Tina Mickler, the female resident referred to in 12(a) above, had signed a contract in 1989 upon admission to the facility prior to being adjudicated incompetent and having a guardian appointed by the court. After Tina Mickler signed the contract on admission, Tina Mickler and her father, jointly executed a contract with the facility before her father was appointed guardian on January 17, 1992. After the March 21, 1994, revisit, Tina Mickler's father, as guardian, executed a new contract with the facility on behalf of Tina Mickler. Facility resident Mary Heagrey, the female resident referred to in 12(b) above, had a signed contract on file with the facility on January 14, 1994 and on March 21, 1994, notwithstanding testimony of the Agency witness to contrary. Apparently, the contract was overlooked when reviewing her records. Deficiency ACLF301 in the Summary of Deficiencies alleges that the facility resident contract did not contain certain provisions required by statute and rule. It is further alleged that only one provision of the resident contract had been corrected at the time of the March 21, 1994, revisit. The Agency reviewed nine out of 28 resident contracts. Some of the nine contracts reviewed did not have all of the provisions that were required by statutes and rules as of January 14, 1994. There was no evidence that the contracts were not in accordance with the statutes and rules at the time they were executed by the resident. At the time of the revisit on March 21, 1994, the provision identified as number 1 under ACLF301, concerning prorated refunds for the unused portion of payments after termination, had been corrected. However, those provisions identified as numbers 2, 3 and 4 under ACLF301, concerning refunds if the facility discontinues operation, disbursement of refunds under Florida Probate Code for a deceased resident and the handling of funds where they are not disbursed under the Florida Probate Code, respectively, were not corrected in that those resident contracts lacking those provision had not been replaced with a newly executed contract with those provisions or had those provisions added to the contract with an addendum. This deficiency has subsequently been corrected. Deficiency ACLF303 in the Summary of Deficiencies alleges that on January 14, 1994, the facility did not have for review an admission package, and as such, it could not be determined that all information was included as required by Rule 10-5.024(2)(a)3., Florida Administrative Code. It is further alleged that this deficiency was not corrected at the time of March 21, 1994, revisit. The facility did not have an admission package per se for review during the Agency's January 14, 1994, or March 21, 1994, visits. However, the facility did have the necessary documents to review with a new resident but they were not contained in a packet to give to the resident; therefore, the Agency could not determined if all required information was included. This deficiency has been corrected in that the facility now has an admission packet. No documentation of social or leisure services activities and activities calendar were followed. Deficiency ACLF702 in the Summary of Deficiencies alleges that on January 14, 1994, that it could not be determined that opportunities were provided for social and leisure services to facilitate social interaction, enhance communication and social skills, and reduce isolation and withdrawal. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Deficiency ACLF703 in the Summary of Deficiencies alleges that on January 14, 1994, the administrator or designee had not fulfilled his responsibility for the development and implementation of or arrangement for participation by residents in an ongoing activities program. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. While there appeared to be some effort on the part of the facility to fulfill its responsibility Rule 10A-5.0182(4), Florida Administrative Code, at the time of the January 14, 1994, survey and the March 14, 1994, revisit, regarding social and leisure services, to provide a activities calendar and to develop and implement arrangements for participation by residents in an ongoing activities program, the facility's effort fell short of what is required in this regard. However, the facility's efforts in this regard subsequent to the March 21, 1994, revisit have corrected those deficiencies. Residents rights and freedoms not protected or provided for. Deficiency ACLF705 in the Summary of Deficiencies alleges that the facility has a written policy that no one is allowed to go to the store after dark which is an infringement on the residents' rights and freedoms. There was testimony concerning a facility policy of requiring resident visitors to be cleared with the Administrator; however, this was not covered in the Summary of Deficiencies under deficiency ACLF705 or any other deficiency. At the time of both the January 14, 1994, survey and the March 21, 1994, revisit, the policy of the facility was not to allow residents to leave the facility after dark and that visitors were to be cleared by the administrator. The basis for these policies was the safety of the residents due the location of the facility, particularly, the policy of not leaving the facility after dark to go to the store. This is no longer a policy of the facility. The facility residents are free to come and go as they may desire. Lack of documentation of facilities response to resident complaints. Deficiency ACLF710 in the Summary of Deficiencies alleges that there was no documentation that the facility responded to resident complaints, in that there was no procedure available for review of complaints received and responses documented. While there was evidence that the facility did encourage filing complaints and did respond to complaints received, the facility did not have an established procedure whereby the review of complaints received and responses were documented. The facility now has an established procedure for documenting the review of complaints and responses. Furnishings not in good repair. Deficiency ACLF904 in the Summary of Deficiencies alleges that furniture was not in good repair, as evidenced by the worn, torn and broken sofa and chairs in the lounge area. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. At the time of the March 21, 1994, revisit there was a torn chair in the lounge area. Ray Dorman testified that the furniture observed on March 21, 1994, was not the same furniture observed on January 14, 1994, because that furniture had been thrown away. Dorman further testified that the torn chair observed at the time of the March 21, 1994, revisit had been torn by a resident in interim between the January 14, 1994, survey and the March 21, 1994, revisit. However, I do not find this testimony to be credible, particularly since the Agency employee conducting the revisit was not made aware of this by anyone at the facility. Proper care not being given to insect control. Deficiency ACLF905 in the Summary of Deficiencies alleges that there is lack of an effective control method to prevent against flies, rodents and other insects from entering the facility as evidenced by: (a) exit doors at end of each corridor did not close properly; and (b) doors to center patio did not close properly. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. However, this deficiency was corrected shortly after the March 21, 1994, revisit. Hot water exceeds maximum allowable temperature. Deficiency ACLF1023 in the Summary of Deficiencies alleges that hot water service to lavatories, showers and baths for residents' use had water temperature readings of 135 degrees thereby exceeding the maximum of 115 degrees provided for in Rules 10A-5.0221(3) and 10A-5.023(10)(e), Florida Administrative Code. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. This deficiency was corrected after the March 21,1994, revisit, and the day of the hearing the hot water temperature for the residents' use was at 115 degrees. Automatic smoke detectors not serviced. Deficiency F.S.17 in the Summary of Deficiencies alleges that there was no documentation of the automatic smoke detectors having the required sensitivity test during the past two years. The facility had documentation of annual inspections of the automatic smoke detectors for March 23, 1993, March 11, 1994 and March 13, 1995. Both the 1994 and 1995 report shows the automatic smoke detectors having the required sensitivity test. However, while the 1993 report does indicate that the required sensitivity test was conducted, Ray Dorman's testimony, which I find credible in this regard, was that the test was performed and paid for, but the failure to note that on the report was an oversight which he failed to note and have corrected. The evidence appears to show that the Agency was not provided with these reports at the January 14, 1994, or March 21, 1994, visits. Emergency lighting inoperable. Deficiency F.S.21 in the Summary of Deficiencies alleges that the emergency lighting was not maintained as evidenced by the lights in the corridors or dining room failing to operate when tested. This deficiency existed at the time of the January 14, 1994, survey. During the interim between January 14, 1994, and March 21, 1994, Ray Dorman caused the emergency lighting system to be checked and repaired. However, on March 21, 1994, there was one light out in the west corridor; therefore, the Agency considered the deficiency as not being corrected. There was no evidence that any of the above deficiencies was a repeat deficiency as that term is defined in Rule 10A-5-0131(2)(xx), Florida Administrative Code, or that they were recurring deficiencies. There was sufficient evidence to show that the above deficiencies, in the aggregate, did potentially threaten the health, safety, or welfare of the facility residents. The deficiencies cited in the administrative complaint in AHCA No.: 05-94-053-ACLF were the same deficiencies cited in the denial letter of July 4, 1994, which eventually resulted in a default Final Order being issued against Scarlet Manor on the basis of the administrative complaint on September 7, 1994. Administrative fines in the amount of $3,250 were assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged. A default Final Order was issued against Scarlet Manor in AHCA No.: 05-94-052-ACLF on September 7, 1994, wherein an administrative fine in the amount of $1,750 was assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, and Rule 10A-5.033, Florida Administrative Code, it is recommended that the Petitioner Agency For Health Care Administration enter a final order finding that Respondent Scarlet Manor has outstanding fines for which there has been no payment plan arranged. It further recommended that Respondent Scarlet Manor's renewal license be denied unless such fines are paid forthwith or a payment plan is arranged under the terms and conditions the Agency deems appropriate. RECOMMENDED this 21st day of June, 1995, in Tallahassee, Florida WILLIAM R. CAVE, 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 21st day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4475 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 23are adopted in substance as modified in Findings of Fact 1 through 39. Respondent's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 9 are adopted in substance as modified in Findings of Fact 1 through 36. COPIES FURNISHED: Thomas W. Caufman, Esquire Division of Health Quality Assurance Agency for Health Care Administration 7827 N. Dale Mabry Highway, Suite 100 Tampa, Florida 33614 Eloise Taylor, Esquire Taylor and Wilkerson 11912 Oak Trail Way Port Richey, Florida 34668 Sam Powers, Agency Clerk Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Jerome W. Hoffman, General Counsel Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue for consideration in this hearing is whether Petitioner, Hyacinth Wallace, should be issued a renewal license for Hyacinth's Family Center, an assisted living facility operated at 7965 Murcott Center, Orlando, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Agency was the state agency responsible for the licensing and regulation of assisted living facilities in Florida. Petitioner, Hyacinth Winter Wallace, operated Hyacinth's Family Center (the Center), a licensed assisted living facility (ALF) at 7965 Murcott Circle in Orlando, Florida. The Center is a six-bed, single-story facility, which has been operated by Petitioner for the past 11 years. In 1997, Ms. Wallace also opened another ALF, Tuscawilla Acres, a 15,000-square-foot, two-story facility located at 2323 Tuscawilla Road in Oviedo, Florida. A biennial survey of Tuscawilla Acres was conducted by Doris Spivey, a surveyor for the Agency, on May 19, 1999, during which several deficiencies were identified and cited. A follow-up visit to the facility on August 11, 1999, revealed that twelve of the cited deficiencies were uncorrected. A second follow-up visit to the facility, conducted on November 23, 1999, revealed several of the deficiencies still remained uncorrected. Based on these uncorrected deficiencies, the Agency indicated its intention to deny renewal of the facility's license. Ms. Wallace requested a formal hearing on the Agency's decision to deny re-licensure of Tuscawilla and that matter was referred to the Division of Administrative Hearings for a hearing. However, before the hearing could be held, Petitioner surrendered her license for Tuscawilla, rendering that licensure issue moot. After the Agency's notification of denial of re- licensure of Tuscawilla, but before the hearing thereon could be held, the Agency advised Petitioner of its intention to deny re-licensure of the Center based on its denial of re- licensure of Tuscawilla. The determination to deny re- licensure to the Center was made based upon the intended denial of re-licensure of Tuscawilla and the facts that the deficiencies which formed the basis therefor were serious; Petitioner's credibility with the Agency was low; and Petitioner was the owner/operator of both facilities, as well as others. Doris Spivey, the Agency's surveyor in both the Tuscawilla and the Center re-licensure applications, recommended to the Agency, after completion of her surveys, that the Center's license renewal application be denied. Notwithstanding that most recommendations of this nature are made in writing, in the case of the Center's application, the recommendation was made orally. No explanation was given for that omission. However, there is no question that based on her investigation of the entire matter, based on the serious nature of Tuscawilla's uncorrected deficiencies, and based on the fact that she did not consider Petitioner to be of sufficient character to operate adult living facilities, she recommended denial of renewal of the Center's license. According to Ms. Spivey, as of November 23, 1999, the date of her last visit to Tuscawilla Acres, several deficiencies still existed. These included a substantial lack of clarity in the facility's financial records; a failure to have beneficiary disposition forms on file; a failure to accomplish required background screening on all employees; a lack of appropriate supervision of medications; and a failure to ensure all residents received their required therapeutic diets. In addition, Ms. Spivey noted that the facility census exceeded the number of residents authorized under the license, and there was no admissions and dispositions log being kept for the facility. Each of these deficiencies, individually, would be sufficient grounds for denial of re-licensure. In addition to the above factors, though Petitioner denies it, Ms. Spivey determined that, contrary to regulations, at least one resident was residing on the second floor of the facility without access to a fire escape. This constitutes a serious violation of the fire code. The accounting for residents among the facilities operated by Petitioner leaves substantial questions unanswered. For example, one resident, A.G., was identified by the Department of Children and Families as receiving Optional State Supplementation (funds) as a resident of Tuscawilla Acres; yet, she was reportedly only a day visitor. If a resident of the facility, A.G. should have been identified as such so she could be followed by the Agency. Petitioner claims she was not a resident but a day visitor. If so, she should not be receiving an OSS check at the facility. A.G.'s sister, who testified by deposition, clearly indicated that A.G. resided at Tuscawilla briefly in early 1999, but was only a day visitor thereafter. Since the Department of Children and Families form reflecting the enrollment of A.G. in the OSS program is dated in August 1998, while there may be an inconsistency in some dates, there does not appear to be any misconduct regarding the payments unless payments were continued to Tuscawilla after Ms. G's departure. There is no evidence of that. When Ms. Spivey examined the admission and disposition log at Tuscawilla on her November 23, 1999, visit, she was accompanied by Ms. Wallace. Ms. Wallace told her at the time that residents included N.L., E. McD., Ms. G., M.J., and G.K., in addition to a Mr. McGee, who was not a bona fide resident of the facility but who lived on the second floor. As it turns out, Ms. Wallace's list was not accurate. Other records at the facility examined by Ms. Spivey reflect an individual named A. (last name unknown); B.S., and another woman whose first name was D. Her last name is also unknown. In addition, a Ms. S. paid for day care. Medications were found bearing the name of A.P. Taken together, it appeared there were at least eight or nine residents living at the facility, not just the four mentioned by Ms. Wallace. The facility license permits only five residents. Ms. Wallace denied all those people lived at Tuscawilla Acres, so Ms. Spivey obtained the names of family members to check with for independent verification. Her query indicated that all the people mentioned lived at the facility except Ms. P. who used to live there. The survey process utilized by the Agency is based on trust, and the surveyors generally believe what they are told by the operator. However, in this case, where the facts developed did not reconcile with the records and the medications on hand, Ms. Spivey felt constrained to verify what she was told. When she did so, she found that in many cases the operator's representations were not accurate. For example, with regard to physician's health assessments, required periodically of all residents, but especially upon admission, one form which had been telefaxed to Ms. Spivey by Ms. Wallace was found to have been altered as to the date of the assessment so as to make it appear current when it was not. In addition, Ms. Spivey found at least one alteration to a resident's diet record, and when this was brought to Ms. Wallace's attention, she became angry. Another record discrepancy relates to the application for the required background screening of an employee, Roy Ingram. Mr. Ingram was an immigrant from Jamaica who did not have a social security number. An application for background screening was submitted on or about August 10, 1999, listing the social security number of the applicant as 212-58-7964; Ms. Wallace signed the application and forwarded it for screening. She claims not to remember whose name appeared on the application when it was submitted, but the social security number on the form belongs to Barbara Ingram, Roy Ingram's wife. The search of the Agency's records reflected that the only application for a background screening bearing that number in 1999 related to Barbara Ingram. When the report of screening came back from the Agency reflecting Barbara Ingram clear of any disqualifying reports, Ms. Wallace changed the name "Barbara" on the form to "Roy" in both places. This is inappropriate. Based on her investigation of Ms. Wallace's operation at Tuscawilla, the inconsistencies and the deficiencies shown, the same hands-on management of both facilities by Petitioner, Ms. Wallace, and her conviction that Ms. Wallace should not be licensed to operate any facility, Ms. Spivey recommended to the Agency that Ms. Wallace be denied re-licensure to operate an ALF at Hyacinth's Family Center. Ms. Wallace has been operating ALFs in Florida for a number of years without disciplinary action being taken against her. She has operated the Center for 11 years and has had no major problems. However, in 1998 her husband walked out on her, and in June 1999, she underwent open heart surgery. It was shortly after her surgery, in early August 1999, that the initial survey at Tuscawilla was conducted. She did not advise the Agency surveyors at that time of her physical condition. Only when the deficiencies were discovered did she request additional time to correct them. The extension of time was granted. In the past, Ms. Wallace asserts, when she has had deficiencies on surveys, she has corrected them and the license in question was renewed. Tuscawilla Acres is a facility which catered to the mentally deficient, those with dementia, and those with diabetes. Most of the residents were poor people who came from economically disadvantaged backgrounds and who had little if any support system other than the federal and state governmental programs. Regarding the deficiencies reviewed by Ms. Spivey, there were no negative outcomes to the residents as a result of them, and none would, in Ms. Wallace's opinion, justify termination of her license. When notified of them, after requesting and obtaining a delay as a result of her surgery, the required corrections were made. She denies ever receiving any compensation for services she did not render. If the Center's license is not renewed, the residents will have to be moved, which, Ms. Wallace claims, may result in hardship to the residents. No evidence in support of this claim was presented, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that the Agency for Health Care Administration enter a final order in this matter denying Hyacinth's Family Center renewal of its license to operate an assisted living facility, at 7965 Murcott Center in Orlando, Florida. DONE AND ENTERED this 14th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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 14th day of February, 2001. COPIES FURNISHED: R. Bruce McKibben, Jr., Esquire Post Office Box 1798 Tallahassee, Florida 32302-1798 Mark S. Thomas, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
