The Issue The issue in this case is whether Petitioner should be terminated from employment with Respondent.
Findings Of Fact At all times material to this case, Mr. Davis was employed by the Sheriff's Office as a deputy sheriff. He had been employed by the Sheriff's Office for 11 years. On July 26, 2010, Mr. Davis was assigned to work a post in the healthcare facility of the Pinellas County jail, beginning at 7:00 a.m. This facility houses inmates who have medical problems. The inmates are placed in pods, and the pods are monitored by using direct supervision, meaning a deputy is stationed inside the pod with the inmates and is able to directly monitor and interact with the inmates. Additionally, the deputy supervising the inmates is able to summon medical assistance within the building for the inmates. On July 26, 2010, Inmate Kyle Howard (Mr. Howard) was housed in the pod that Mr. Davis was supervising. On that same day, Mr. Howard came to Mr. Davis and told Mr. Davis that he was ill. Sometime during the day, two inmates came to Mr. Davis and told him that Mr. Howard was sick and throwing up a lot. Standing about 30 feet away from Mr. Howard, Mr. Davis witnessed Mr. Howard "over the toilet in a vomiting mode." Around 9:00 a.m. on July 26, 2010, the nurse, who gave medications to the inmates, gave Mr. Howard a suppository for the nausea. Sometime between 3:08 p.m. and 3:47 p.m., an inmate came to Mr. Davis and told him that Mr. Howard was not responsive. Mr. Davis went to Mr. Howard's cell, discovered that Mr. Howard was not responsive, and called for emergency medical assistance. Mr. Howard was taken to the hospital, where he was pronounced dead. One of the responsibilities of Mr. Davis was to interact with inmates to determine what problems may exist and to summon medical assistance if necessary. On July 26, 2010, Mr. Davis did not attempt to speak to Mr. Howard to determine what was wrong with him and did not call for medical assistance until Mr. Howard was found unresponsive. Mr. Davis was required to check on the inmates in the pod every 30 minutes to monitor the wellness and security of the inmates in the pod. Mr. Davis is required to check each cell and inmate during these checks. After each 30-minute check, Mr. Davis is required to record on a Daily Log Report that he performed the check. The Daily Log Reports are part of the official records of the Sheriff's Office. Mr. Davis admitted that he did not make a complete check every 30 minutes as he was required to do. He walked part of the way down the hall and observed some but not all the inmates. He entered in the Daily Log Report that he had made the checks as required. During some of Mr. Davis's shift on July 26, 2010, Mr. Davis was playing Hearts on the computer and was checking Yahoo and MSN. Prior to the incident at issue, Mr. Davis had been disciplined two times for inappropriate use of computers while on duty. Mr. Davis has admitted that he committed the violations that are charged, but contends that he should be suspended rather than terminated from his employment. The Sheriff Office's General Order 10-2 sets forth the guidelines to be used in the application of discipline. The range of penalties is based on the severity of the violation, from Level One, which is the least severe, to Level Five, which is the most severe. Failing to monitor Mr. Howard and to call for medical assistance for Mr. Howard are severe violations and are Level Five violations. Failing to accurately record his 30-minute checks, because he was not checking each of the inmates during his rounds, is also a severe violation and is a Level Five violation. General Order 10-2 provides that two Level Five violations are assigned 60 points. The disciplinary range for 60 points is a seven-day suspension to termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Mr. Davis's employment with the Sheriff's Office. DONE AND ENTERED this 16th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 16th day of May, 2011. COPIES FURNISHED: Sherwood S. Coleman, Esquire Pinellas County Sheriff's Office 10750 Ulmerton Road Largo, Florida 33778 Jimmie Davis 2086 Pine Ridge Drive Clearwater, Florida 33763 James L. Bennett, County Attorney Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a grocery supply company that operates several large warehouses. It supplies groceries to military commissaries. On November 26, 2002, Petitioner was hired by Respondent as a selector/stock picker. At some point, Petitioner became a stockchecker/loader. As such, Petitioner’s duties included gathering merchandise from Respondent’s warehouses, loading pallets and loading trucks. Petitioner’s primary work area was the front docks in the main warehouse; his direct supervisor was David Malloy. The main warehouse had two break rooms. Petitioner’s scheduled start time was 6:30 a.m. During the work day, Petitioner had scheduled breaks in the morning and afternoon. Each break was for 10 minutes. No breaks were scheduled between 6:00 a.m.-6:30 a.m. Additionally, Petitioner had a scheduled lunch period. Employees were notified of a break or lunch period through the PA system. There was no evidence that Mr. Malloy permitted unscheduled breaks. Prior to the end of January, 2008, GSC discovered that Hormel dinners and Capri Sun products were disappearing from the warehouse. Management and supervisors strongly suspected that these products were being stolen by employees. At some point, GSC supervisors found a hidden stash of food products in the break room of Building 11, one of Respondent’s warehouses also known as the repack area. This warehouse was located about 3-4 minutes’ walk away from the front loading docks in the main warehouse. In an effort to discover who had hidden the products, GSC supervisors were periodically checking the break room of Building 11. Between 6:00 a.m. and 6:30 a.m., on January 28, 2008, Kim Howell, a warehouse supervisor, entered the break room of Building 11 and saw Petitioner and Anthony Smith, also a loader, standing at a counter in the break room. Petitioner was drinking coffee and Mr. Smith was eating one of the Hormel products from the hidden stash. Ms. Howell asked what the two men were doing. Petitioner stated that he had come to Building 11 to get some coffee. He did not state that he had come to the warehouse to select any products. Mr. Smith did not explain his presence in Building 11 because he was eating. When Ms. Howell asked about the food he was eating, Mr. Smith admitted that the food was not his and that he did not know who it belonged to. Eventually, Ms. Howell instructed both men to “get back to work.” Both men returned to the front docks in the main warehouse. Eventually, Mr. Smith was sent home with instructions to return at 10:00 a.m. the next day. Petitioner remained at work. Ms. Howell retrieved the Hormel box from the trash and immediately reported the incident to her supervisor, Harry Madden. The product code on the Hormel box matched the product code of the hidden Hormel meals. Later, Ms. Howell told Petitioner the incident was being investigated. She indicated that he would be interviewed about the incident by Mr. Madden and that he should tell the truth. On January 29, 2008, Petitioner was interviewed by Mr. Madden. Ms. Howell was present. During the interview, Petitioner stated that he had gone to Building 11 to get a cup of coffee and that he saw Mr. Smith eating a Hormel meal in the break room when Ms. Howell entered the room. Mr. Madden and Ms. Howell thought Petitioner was more intent on asserting that GSC could not prove that Mr. Smith had stolen the product he was eating because the Hormel product could have been purchased anywhere in the Pensacola area. Mr. Madden asked Petitioner several times if he knew where Mr. Smith had gotten the Hormel product. Petitioner stated that he didn’t know because he saw the same thing that Ms. Howell saw, i.e., Mr. Smith eating the food. Mr. Madden felt Petitioner was being uncooperative based on the fact that he was in the break room with Mr. Smith and Petitioner’s attitude during the meeting. There was no evidence to show that Mr. Madden’s perception was unreasonable or a pretext for discrimination. Mr. Madden forwarded the issue of discipline to the Human Resources department, in part due to the perceived lack of cooperation by Respondent and, in part, due to the fact that Respondent was in a break room taking a break when it was not break time. The Human Resources department reviewed Petitioner’s work and discipline history. The records showed that Mr. Lindsey had been repeatedly warned and disciplined for tardiness. As testified to by Mr. Lindsey’s supervisor, Dave Malloy, the disciplinary write-ups included only those instances which warranted disciplinary action during a rolling six-month period. Because of his repeated tardiness, Petitioner had received a final warning. The records also showed that Mr. Lindsey had been disciplined for failure to adequately perform the duties of his position. Based on Petitioner’s disciplinary history and final warning, his presence in the break room during non-break hours, and his perceived refusal to cooperate during the company’s investigation of Mr. Smith’s activities, Mr. Lindsey was terminated on January 29, 2008. There was no evidence that Respondent’s reason for termination was unreasonable or a pretext to cover discrimination. Eventually, Mr. Smith admitted to the theft and was terminated for theft. Mr. Smith did not implicate Petitioner in the theft. Petitioner identified Kim Howell as the only non- minority employee who had allegedly been treated differently than him. He based his assertion on the fact that Ms. Howell was not terminated as he was over the events of January 28, 2008. However, Ms. Howell is clearly not similarly situated to Petitioner. She was authorized to be in Building 11 and was performing her investigative duties. She also was not on an unscheduled break. There was no evidence presented regarding Ms. Howell’s disciplinary history. In comparison, Petitioner was primarily terminated for being on an unscheduled break and for his past disciplinary history. Even though incorrect, Mr. Madden, based on the circumstances, reasonably believed that Petitioner was not cooperating in the investigation. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 24th day of June, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 24th day of June, 2009. COPIES FURNISHED: Fred Lindsey 5908 Princeton Drive Pensacola, Florida 32526 Michael S. Mitchell, Esquire Fisher & Phillips, LLP 201 St. Charles Avenue Suite 3710 New Orleans, Louisiana 70170 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
The Issue There were four cited violations: Failure to keep daily medical administration records. Failure to document monthly fire drills. Violation of fire code by having bolts and chains on front and back door. Violation of fire code by having a door in a resident's room blocked by the resident's bed. Lauchner admitted these facts and DHRS proved the facts of allegations. However, there is an issue of law regarding whether all or part of the fire code violations apply to an ACLF which has less than three residents. Neither party filed proposed findings although DHRS filed copies of the applicable rules as a late filed exhibit and Ms. Lauchner filed a letter which contained her arguments but no proposed facts.
Findings Of Fact Mildred Lauchner is licensed by DHRS to operate Lauchner ACLF. This facility is licensed for three residents but it has never had more than two residents at one time. Mildred Lauchner is a mature white female who has worked at hospitals and nursing homes as an aide. She has operated an ACLF for several years and has a good general reputation with DHRS. She does this primarily alone with the assistance of a cleaning person who comes several times per week. Ms. Lauchner exhibited confusion about the sequence of events which lead to these fines being levied. Residents at the Lauchner ACLF are primarily elderly bed-ridden persons who do not need nursing care. On January 29, 1985 an inspection was conducted of Lauchner ACLF by DHRS. A copy of the inspection report was introduced as PEX 1. This inspection revealed various Class III deficiencies. A copy of this report was presented to Mildred Lauchner on February 23, 1985. She had 30 days to correct the deficiencies from the date of the deficiencies. On March 22, 1985 Lauchner ACLF was inspected. Four of the deficiencies were not corrected. Daily medication records were not being kept as required, there was no documentation of monthly fire drills, locks were on exit doors and a bed in a bedroom blocked an outside door. On May 22, 1985 the Lauchner ACLF was reinspected. Of the deficiencies previously noted in paragraph 5 above, the monthly fire drills had been documented and one of the exit doors had been brought into compliance with the life safety code. Lauchner ACLF had at least three exterior doors: a front door, a back door and door to the outside of the house in a bedroom. On June 4, 1985 the DHRS served an administrative complaint on Mildred Lauchner seeking to impose a total fine of $700.00 broken down as follows: $150.00 failure to keep daily medical administration records. $100.00 failure to document fire drills. $250.00 failure to have only simple locks on exit doors and having bolts or chains on such doors. $200.00 blocking an "exit" door in a bedroom.
Recommendation Having found that Lauchner ACLF was in violation of 10A- 5.24(1)(a)(3), Florida Administrative Code, it is recommended that the civil penalty of $150.00 be levied against Mildred Lauchner, the licensed operator. DONE AND ORDERED this 14th day of February 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February 1986. COPIES FURNISHED: David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol Wind, Esquire District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Mildred Lauchner Lauchner ACLF 404 Madison Avenue North Clearwater, Florida 33515
The Issue An administrative complaint dated June 19, 1997, alleges that Respondent, Richard P. Bushey, committed aggravated assault and had adjudication withheld on a felony charge of carrying a concealed weapon, and therefore violated Section 493.6118(1)(j), Florida Statutes, and was not qualified for licensure, pursuant to Sections 493.6106(1)(b), 493.6118(1)(f) and 493.6101(7), Florida Statutes. The issues for disposition in this proceeding are whether the allegations are true, and if so, what discipline is appropriate.
Findings Of Fact At all times relevant to the matters at issue, Respondent, Richard Paul Bushey (Bushey), held a class "D" security license no. D94-16538. Sometime around 9:30 p.m. on July 19, 1996, in Winter Garden, Florida, Joseph Howers was in a convenience store standing in line with his purchases when an individual, later identified as Respondent Bushey, entered the store swearing, waving his arms, and complaining about how people drive. Mr. Howers, who had never met Respondent Bushey before, commented something like, "Life is rough all over. I guess he'll get over it." After paying for his purchases, Mr. Howers left the store and got into his truck which was parked near the door of the store. He leaned over to arrange his parcel on the floor of the passenger side of the vehicle, and as he sat back up, he heard mumbling and saw Respondent Bushey at the truck window on the driver's side. Respondent Bushey was swearing and inarticulate, and Mr. Howers thought there was something wrong with him. Mr. Howers said, "Listen, go away, leave me alone. I don't know what your problem is but it's not with me." Respondent Bushey stepped back, lifted his t-shirt, and put his hand on a gun that was under the shirt. Afraid, but still under control, Mr. Howers said, "You don't want to do this- -I'm going to start my truck." Respondent Bushey pulled the gun out and extended it 2-3 feet from Mr. Howers' head. Mr. Howers backed out slowly and Respondent Bushey walked along, following the truck. When he was close to the road, Mr. Howers leaned across the seat out of the range of his vehicle's windows and stepped on the gas pedal. Once out of sight of Respondent Bushey, Mr. Howers called 911 on his cellular phone and reached the Winter Garden police dispatcher. He reported the incident and the police were sent to the convenience store. Mr. Howers continued to the police station where he was told that the arrest had already been made. He then returned to the convenience store to identify the individual who pulled the gun on him. The individual was Respondent Bushey, who by this time was in custody in the back of the patrol car. It was apparent to Mr. Howers that Respondent Bushey, at the time of the incident, had the ability to pull the trigger and shoot him. Mr. Howers did not provoke or otherwise justify the attack and had a reasonable and well-founded fear for his safety. As admitted in his response to requests to admit, on or about January 13, 1997, Respondent Bushey had adjudication withheld, in Orange County, Florida, on a felony charge of carrying a concealed weapon.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Department of State enter its Final Order revoking the Class "D" security license of Respondent Paul Bushey. DONE AND ORDERED this 12th day of February, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of February, 1998. COPIES FURNISHED: Honorable Sandra B. Mortham Secretary of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 John M. Russi, Director Division of Licensing Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Douglas D. Sunshine, Esquire Division of Licensing Department of State The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Richard P. Bushey 1620 Cimarron Hills Drive Apopka, Florida 32703
The Issue The issues are whether Respondent is guilty of a class I violation, within the meaning of Subsection 400.23(8)(a), Florida Statutes (2003), for the alleged failure to provide either supervision of residents or assistance devices that were adequate to prevent accidents; whether Petitioner should have changed the status of Respondent's license from Standard to Conditional; whether Petitioner should impose a $10,000 administrative fine and a $6,000 survey fee; and whether Petitioner should place Respondent on an accelerated six-month survey cycle.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes in Florida pursuant to Chapter 400, Florida Statutes (2003). Respondent is licensed to operate a nursing home located at 2916 Habana Way, Tampa, Florida (the facility). The facility is a four-story building. The event at issue occurred on the second floor of the facility. The second floor of the facility consists of a single, straight, east-west hallway with adjoining resident rooms, storage closets, a nursing station, a day room, and an elevator. An exit door is located at each end of the hallway. Each exit door leads into a stairwell. A small landing on the stairwell-side of each exit door provides a short, flat surface between the exit door and the first step of the stairwell. An undetermined number of steps lead to a landing in the stairway midway between the second and first floors. Each exit door is equipped with an alarm designed to activate when the door is opened and to de-activate when the door closes. When the door is opened and the alarm activates, staff who hear the alarm should redirect any resident that is near the exit door. On July 7, 2004, Respondent admitted a resident identified in the record as Resident 1 and assigned Resident 1 to the second floor of the facility. Resident 1 was cognitively impaired and had an unsteady gait. Facility staff provided a wheelchair that Resident 1 was able to self-propel. Facility staff assessed Resident 1 to be at risk for falls and developed a care plan. Pursuant to the care plan, staff provided a wheelchair alarm to notify staff in the event Resident 1 attempted to exit the wheelchair without assistance. Resident 1 was a potential risk to wheel herself through the exit doors on the second floor of the facility. However, Resident 1 was not a likely risk to exit the facility through the exit doors because Resident 1 had not previously demonstrated any exit-seeking or elopement behavior. It is undisputed that a likely risk of exit existed only if Resident 1 had previously engaged in exit-seeking behavior. Resident 1 had limited her behavior to wandering from room to room. On July 9, 2004, between 5 and 7 p.m., Resident 1 received her evening meal and a shower from a certified nursing assistant (CNA). The resident's daughter then visited for a brief period of time and left. Between 7:30 and 7:45 p.m., a nurse on duty saw Resident 1 in her wheelchair in the hallway, but Resident 1 was not exit-seeking or otherwise engaged in any unsafe behavior. Sometime between 7:45 and 8:00 p.m. on July 9, 2004, Resident 1 wheeled her chair to the exit door at the east end of the hallway, opened it, and entered the stairwell. Resident 1 fell down an undisclosed number of stairs and landed on the stairway landing between the second and first floor. At approximately 8 p.m. on July 9, 2004, a CNA entered the second floor from the elevator to pass out snacks to residents. The CNA heard the sound of a wheelchair alarm, traced the alarm to the landing in the stairwell, and found Resident 1 with the wheelchair on top of the resident. Resident 1 sustained a laceration of her forehead and suffered head, neck, and back pain. Facility staff transferred Resident 1 to a hospital where she received stitches to close the laceration. Resident 1 did not return to the facility. Respondent notified Petitioner of the incident involving Resident 1, and Petitioner sent a surveyor to investigate the incident on July 16, 2004. Upon completion of the investigation, Petitioner charged Respondent with a violation of 42 CFR Section 483.25(h)(2). The federal standard requires nursing homes to provide "adequate supervision and assistance devices to prevent accidents." The federal standard is made applicable to nursing homes in Florida, including Respondent, pursuant to Florida Administrative Code Rule 59A-4.1288. The parties identified the alleged deficiency in the record as Tag F324 because the survey report identifies the alleged deficiency as Tag F324. Tag F324 alleges that Respondent violated two conjunctive requirements. First, Respondent allegedly failed to provide adequate supervision to prevent accidents. Second, Respondent allegedly failed to provide adequate assistance devices to prevent accidents. It is undisputed that applicable law does not impose absolute or strict liability on Respondent for the accident involving Resident 1. Petitioner has cited no law similar to the "but for" test in tort law to support a finding that Resident 1 could not have suffered injury "but for" the inadequate supervision of residents or inadequate assistance devices. For reasons stated in the Conclusions of Law, Petitioner must show by the applicable standard of proof that the event involving Resident 1 was reasonably foreseeable; that a specific intervention existed involving resident supervision or assistance devices; and that Respondent should have identified the intervention and could have provided the intervention to prevent the accident. The preponderance of evidence does not support a finding that the accident was reasonably foreseeable. It is undisputed that a foreseeable risk of Resident 1 exiting through one of the exit doors existed only if she had previously engaged in exit-seeking. Resident 1 had not previously exhibited any unsafe behaviors, including active exit-seeking. Her behavior had been limited to wandering from room to room. It was not reasonably foreseeable that Resident 1 would attempt to enter an exit door on her own. The evidence does not show whether the alarm on the exit door activated; or, if it did activate, whether staff members did not hear the alarm; or, if any member of the staff heard the alarm, the staff member ignored it or otherwise failed to respond to the alarm. Between 7:30 and 8:00 p.m., CNAs on the second floor routinely put residents to bed. When providing that care, CNAs close the door of each resident's room to assure privacy, thereby making it difficult to hear a door alarm. Between 7:45 and 8:00 p.m., the staff member in the nursing station was away from the station obtaining supplies from another location. A door alarm would be audible to a staff member in the nursing station or in the hallway between rooms. When facility staff conducted a random test of the door alarms during the investigation on July 16, 2004, the door alarms functioned properly, and staff members adequately responded to the alarms. The floor plan of the second floor precluded a staff member in the nursing station from viewing the east exit door without standing in the front of the nursing station at the hallway. The ratio of facility staff to residents on July 9, 2004, satisfied the minimum requirements for nursing homes. It is undisputed that the applicable standard required staff members who were on duty to check on Resident 1 once every two hours. The staff members on duty observed Resident 1 more frequently than every two hours between 6 p.m. and 8 p.m. on July 9, 2004. The preponderance of evidence is inadequate to support a finding that Tag F324 required facility staff to provide Resident 1 with supervision that was more frequent than staff provided on July 9, 2004. Resident 1 had not previously exhibited any exit-seeking behavior, and the incident on July 9, 2004, was not reasonably foreseeable. As Petitioner has stated in previous final orders, the quality of care regulations applicable to nursing homes do not require staff members to constantly monitor residents. See Beverly Enterprises-Florida, Inc. d/b/a Beverly Health and Rehabilitation Center – Rio Pinar v. Agency for Health Care Administration, DOAH Case No.97-2017, Final Order entered June 29, 1998. Petitioner did not provide any factual or legal basis to distinguish this proceeding from the policy that Petitioner has stated in previous final orders. It is undisputed that a hall monitor was a specific staffing intervention that existed and that Respondent could have identified and provided prior to the accident on July 9, 2004. However, a preponderance of the evidence does not support a finding that Respondent should have identified and provided a hall monitor prior to the accident. The evidence does not show that any of the residents on the second floor, including Resident 1, had previously exhibited any exit-seeking behavior, and the evidence did not support a finding that a hall monitor was required to prevent a reasonably foreseeable event. Petitioner did not show that Petitioner construed Tag F324 to require a hall monitor before the survey on July 16, 2004. Petitioner did not show that it charged Respondent in previous surveys with a deficiency for failure to provide a hall monitor in violation of Tag F324. Petitioner did not show prior inadequate supervision that may have supported a finding of inadequate supervision in this proceeding based on prior similar acts. Rather, the evidence showed that routine supervision in the existing physical floor plan of the second floor without a hall monitor had been effective for more than three years in preventing incidents or injuries in the stairwell. If such supervision were inadequate under Tag F324, notwithstanding the absence of incident or injury, it is reasonable to infer that Petitioner would have stated its agency interpretation of Tag F324 in previous surveys by charging Respondent with such a deficiency. Petitioner did not prove any previous deficiencies or prior similar acts in violation of Tag F324. It is undisputed that a keypad locking system for the exit doors on the second floor was a specific assistance device that Respondent could have provided to prevent the accident on July 9, 2004. However, a preponderance of evidence does not show that Respondent should have identified and provided a keypad system to prevent the accident involving Resident 1. The exit doors on the second floor were unlocked because the applicable fire code prohibited Respondent from locking the exit doors. It is undisputed that door alarms on unlocked exit doors do not prevent accidents, such as the one involving Resident 1, unless facility staff are immediately at hand to redirect an exit-seeking resident rather than inside resident rooms preparing residents for bed. If unlocked exit doors equipped with alarms were inadequate assistance devices under Tag F324, it is reasonable to infer that Petitioner would have stated its interpretation of Tag F324 in previous surveys by charging Respondent with such a deficiency. Petitioner did not prove any such previous deficiencies. The door alarms operated properly when facility staff tested the alarms during the survey. The fire code permitted use of a keypad system that unlocks each exit door on the second floor when a member of the staff enters an appropriate code on the keypad. However, Petitioner did not show that Petitioner interpreted Tag F324 to require a keypad system to prevent accidents prior to the survey conducted on July 16, 2004. If Petitioner had interpreted Tag F324 to require a keypad system prior to the survey, it is reasonable to infer that Petitioner would have cited Respondent in previous surveys for failure to provide adequate assistance devices to prevent accidents. Petitioner did not prove any such previous deficiencies. The preponderance of evidence does not support a finding that Petitioner should have changed Respondent's license rating from standard to conditional from July 16 until August 18, 2004. Prior to the surveyor's departure from the facility on July 16, 2004, Respondent assigned a hall monitor to the hallway to prevent any attempt by a resident to exit the second floor. Respondent provided hall monitors until Respondent subsequently installed a keypad system on the exit doors. Petitioner's surveyor testified that hall monitors were sufficient to comply with the requirements of Tag F324. Tag F324 did not require Respondent to provide a hall monitor between July 9 and 16, 2004. It is undisputed that a foreseeable risk of a resident exiting through one of the exit doors existed only if a resident had previously engaged in active exit-seeking. From July 9 until July 16, 2004, Resident 1 was no longer in the facility, and Petitioner did not prove any other resident in the facility that was actively exit- seeking or otherwise engaged in unsafe behavior between July 9 and 16, 2004. If Petitioner interpreted Tag F324 to require a hall monitor prior to July 16, 2004, it is reasonable to infer that Petitioner would have stated that policy in previous surveys by charging Respondent with a deficiency for failure to provide monitors. The preponderance of evidence does not support a finding that Respondent failed to adequately respond after the incident involving Resident 1. It is undisputed that Respondent's medical care of Resident 1 after the incident was adequate, as was the report to Petitioner. Between July 9 and July 16, 2004, the facility's Director of Nursing twice counseled staff on the 3 to 11 p.m. shift about the incident involving Resident 1 and the need for heightened awareness of the door alarms. On July 10, 2004, the facility administrator tested the staff's response to the alarms, and the response was adequate. During the survey on July 16, 2004, Petitioner's surveyor observed a timely response by staff to an unannounced activation of the door alarm. Respondent installed a keypad system in a timely manner. On July 12, 2004, Respondent scheduled a vendor to visit the facility to provide an estimate of cost for a keypad system. Respondent installed a keypad system after the survey and prior to the administrative hearing. Petitioner did not prove that Respondent was unreasonably slow to install the keypad system. If it were determined that Respondent violated one or more of the requirements in Tag F324, Petitioner did not prove Respondent is guilty of a class I deficiency. In order for a deficiency to be a class I deficiency, Petitioner must show that the deficiency "caused, or is likely to cause, serious injury, harm, impairment or death to a resident receiving care" within the meaning of Subsection 400.23(8)(a), Florida Statutes (2003). In relevant part, the statute requires Petitioner to prove that the alleged deficiency either caused serious harm or is likely to cause such harm. It is undisputed that the alleged deficiency did not cause serious harm to Resident 1. Petitioner's only witness testified that Resident 1 did not sustain serious harm and characterized the injuries to Resident 1 as "minimal." Moreover, Petitioner's witness did not rely on the injuries to Resident 1 to support the class I rating. Petitioner's witness opined during the hearing that the alleged deficiency was a class 1 deficiency because it was likely that another resident would enter the stairwell and suffer serious harm or death. The opinion of Petitioner's witness of the likelihood of serious harm or death is not supported by a preponderance of evidence. A likely risk of a resident exiting through one of the exit doors existed only if a resident had previously engaged in active exit-seeking. The evidence does not show any resident in the facility, other than Resident 1 on July 9, 2004, had demonstrated any exit-seeking behavior to support a finding that it was likely a resident would exit the facility through one of the exit doors. Resident 1, the only resident for which there was any evidence to support the opinion of Petitioner's witness, did not return to the facility after the incident. Respondent installed a hall monitor on July 16, 2004, and it is undisputed that this action was adequate to eliminate the likelihood of a resident exiting the facility. For reasons stated in the previous paragraph and paragraph 28, it was not likely that a resident would exit through the stairwell between July 10 and 16, 2004. If it were determined that a "potential" risk, rather than a likely risk, existed for a resident to exit the facility through the exit doors, a potential risk is inadequate to classify the deficiency as a class I deficiency. A deficiency with a "potential" to compromise a resident's well being is properly classified as a class III deficiency within the meaning of Subsection 400.23(8)(c), Florida Statutes (2003). Any such deficiency was not an uncorrected class III deficiency because the assignment of a hall monitor corrected any potential risk by the time of the survey.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the violations charged in the Administrative Complaint; dismissing the proposed fine, fee, and accelerated survey cycle; and replacing the Conditional rating from July 16 through August 28, 2004, with a Standard rating. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 28th day of February, 2005. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Donna Holshouser Stinson, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 R. Davis Thomas, Jr. Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The Respondent, R & R Guest Home, Inc., is located at 720 S. W. 5th Street in Dania, Florida, and consists of four apartments which are designated as A building, B building, C building, and D building. Buildings A, B and C are contiguous. Building D is located east of the main complex. The Respondent facility received license number 10-06-0046 on December 2, 1981, allowing a capacity of 21 beds. This license had an expiration date of September 9, 1982. On March 31, 1982, the Respondent was advised that the allowable capacity had been increased to 37 beds, and on November 8, 1982, license number 10-06-0046 was reissued to show a capacity of 37. The capacity set by HRS was based on its regulations which require a usable floor space of 60 square feet per bed in rooms designated for multiple occupancy. A representative of HRS visited the R & R Guest Home on February 9, 1982, and on July 6, 1982, and found resident beds in use in excess of the licensed capacity of the facility. By notice dated July 7, 1982, HRS advised the Respondent that corrective action must be taken by July 21, 1982. Specifically, the HRS representative found 53 beds in place. The HRS representative again visited the R & R Guest Home on August 24 and on August 26, 1982, and once again found beds in the facility in excess of the licensed capacity of 37. In November of 1982 the HRS representative visited the Respondent, R & R Guest Home, and the excess beds found on the August visits were still in place. Respondents facility had been cited previously, in July of 1981 and in February of 1982, for having beds in excess of the licensed capacity, but these violations had been corrected. The Respondent's owner admits that on July 6, 1982, there were 43 beds on the licensed premises, and that on this date the authorized capacity was 37. The excess beds in the Respondent's facility were situated across doorways in the A building and in the B building, creating a situation that presented potential danger to the residents, in that they might not be able to exit the buildings in an emergency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilita tive Services assess fine of $1,000. against the Respondent, R & R Guest Home, Inc. THIS RECOMMONDED ORDER entered this 7th day of March, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS 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 7th day of March, 1983. COPIES FURNISHED: Harold L. Braynon, Esquire 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Jesse H. Diner, Esquire Post Office Drawer 2088 Hollywood, Florida 33022-2088 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Paul R. Layton, is an inmate presently confined at the Tomoka Correctional Institution, Daytona Beach, Florida. Given a choice the Petitioner would not wear his hair any longer than his collar. His personal feeling, however, is that the rule is used as a harassment technique and is used to dehumanize and institutionalize the prisoners. The Respondent's rationale for the rule is that requiring prisoners to keep their hair short aids in identification of the individual prisoners within the institution and in the event of an escape. Prisoners have attempted escapes by altering their appearance. The Department of Corrections, pursuant to the challenged rule, has required prisoners to cut their hair such that it is above their collar and off of their ears. The Department houses approximately 27,000 inmates, all of whom are required to wear similar uniforms. When a prisoner escapes, the Department of Corrections must provide a current photograph of the escaped prisoner to law enforcement agencies. Requiring short standardized haircuts substantially reduces the cost and difficulty such current photographs. Petitioner contended that the rule is discriminatory in that female inmates are not subjected to the same haircut standards. The majority of female inmates wear their hair long and when they change the length of their hairs they are rephotographed. Shorter hair is more sanitary for those prisoners who are involved in food preparation. Long hair can also constitute a safety hazard for those inmates who operate machinery.
