Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN 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 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. By letter dated October 1, 1980, Respondent, David K. Witherspoon, and his parents were advised by the Pinellas County Superintendent of Schools, Gus Sakkis, that he was being suspended from the public schools of Pinellas County for the remainder of the 1980/81 and 1981/82 school years based on an allegation that Respondent committed a battery while on school grounds on September 19, 1980, following a high school football game. (Joint Exhibit 1) Respondent is scheduled to graduate from high school at the end of the 1981/82 school year. Following the expulsion, Respondent has been assigned and is attending an evening alternative education school program sponsored by the Pinellas County School System. According to testimony, that a system provides two hours of instruction each week day evening. Respondent appealed the Superintendent's expulsion and the parties stipulated that the Division of Administrative Hearings has jurisdiction to resolve this controversy. According to the Code of Student Conduct, students are expected to conduct themselves at all times in a manner that "shall [not] infringe on the rights of others. A battery, according to the Code of Student Conduct, is the unlawful, intentional touching . . . or force to another person, done in a rude, insolent and angry manner shall subject a student to disciplinary action which may include suspension or expulsion from school." Paragraph 3(a)2, Code of Student Conduct. The material allegations of this controversy are that following the football game at Gibbs Senior High School (Gibbs) on September 19, 1980, Respondent while in the company of four other black males struck Anthony Scott Taylor, a seventeen year old senior at Gibbs, his mother and his fiancee in the school's parking lot. Anthony Taylor charged that Respondent kicked him across his eye; struck him with his fist, bruising his nose and caused his eye to bleed. Taylor has know Respondent for more than two years and has had no prior run-ins or altercations with Respondent. Taylor alleges that approximately 20 or more black students encircled him during the altercation with Respondent. Taylor, while on his knees in a slouched position when he was allegedly hit an kicked by Respondent, glanced up to identify Respondent. Taylor admitted that he was preoccupied with ensuring that his fiancee and mother could leave the parking area without difficulty. He also commented that blood was streaming from his right eye from the blow he received. Ann Taylor, Anthony Taylor's mother, was also struck by a black male as she was leaving the September 19, 1980, football game at Gibbs. Mrs. Taylor testified that her son was knocked down he (Anthony) told one of the black males "that's my mother you knocked down." Mrs. Taylor testified that she was unable to identify any of the students involved in the altercation and noted that her son was dazed when he left the area where the fight occurred. Lori Bush, Respondent's fiancee, also accompanied the Taylors following the football game. Ms. Bush also could not identify any of the students involved in the altercation with them. Ms. Bush and Anthony Taylor's mother picked him up and carried him to their car. Ms. Bush did not recall having seen Respondent prior to the hearing in this cause. Paula Sitzelberger, a detective with the St. Petersburg Police Department investigated the subject incident which occurred at Gibbs on September 19, 1980. Detective Sitzelberger spoke to Respondent at school on September 23, 1980, and after questioning him, reported that Respondent denied striking Anthony Taylor following the game. Detective Sitzelberger noted that Respondent admitted to having shoved another white male whose identity is unknown in another area of the parking lot after the white male allegedly pulled or struck Respondent. Detective Sitzelberger was unable to locate any independent witnesses to the subject incident. Jerry Young, a witness called on behalf of Respondent, recalled the numerous fights which occurred following the September 19, 1980, football game at Gibbs. Young followed Respondent throughout the school ground area and denied that Respondent had any involvement in the subject incident. He corroborated Respondent's testimony to the effect that Respondent's hand was injured in another incident in another area of the school's parking area after Respondent was first enmeshed in an altercation with another white male. Respondent related the incident following the September 19, 1980, football game at Gibbs. Respondent has been attending evening sessions at Mirror Lake Adult High School since his expulsion from the regular public schools of Pinellas County. According to Respondent, Tony Taylor was struck by a group of other blacks and Respondent denied any involvement on his part in that incident. Respondent surmised that Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor shouted that he recognized him while he was being struck in an effort to gain some sympathy from the group that was striking him. Respondent, after hearing Tony Taylor repeatedly shout that he knew him, left the area with companion Young although he got involved in another altercation with another white male which resulted in an injury to his hand. Respondent first became aware of his alleged involvement in the Anthony Taylor incident the following Monday when he was questioned by Dean Jones and Detective Sitzelberger. 2/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be reinstated in the Pinellas County School System; that the suspension be revoked and that the student be permitted to make up the school work missed as provided in Chapter 4(b)1(h) of the Code of Student Conduct adopted by the Pinellas County School System. RECOMMENDED this 14th day of January, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1981.
The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
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 upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue Whether cause exists for the Petitioner's proposed termination of the Respondent's employment as a bus driver for alleged inappropriate conduct with a student.
Findings Of Fact At all times material to this case, Respondent Howard Jessie (Respondent) was employed as a bus driver by the Pinellas County School Board. On an unidentified day during the first semester of the 1993-1994 school year, the Respondent was observed fraternizing on campus with several Pinellas Park High School students. The Respondent was tossing a football with students in an area which was "off-limits" to students. A female student identified herein as T.C. was present. A school resource officer approached the Respondent, and informed him that the area was off-limits to the students and that it was not appropriate for him to socialize with students at that time. The Respondent informed the officer that he was a bus driver and his association with students was not inappropriate. On a later unidentified day during the first semester of the 1993-1994 school year, the school's assistant principal observed the Respondent walking with T.C. in the "mall" area of the high school campus. The assistant principal instructed the Respondent to cease fraternizing with students. On a third day during the first semester of the 1993-1994 school year, the assistant principal observed the Respondent standing near the school bus area and speaking with several students including T.C. The assistant principal contacted a supervisor at the school board's transportation department and informed him of the Respondent's behavior. Upon receiving the phone call from the assistant principal, the supervisor summoned the Respondent to his office and directed the Respondent to cease his association with the students. The Respondent agreed to refrain from having further contact with the students. On or about January 10, 1994, the school resource officer observed the Respondent and T.C. standing on campus next to a parked school bus, and watched as the Respondent kissed T.C. on her cheek. The student did not appear to resist the kiss. The officer reported his observations to the assistant principal who contacted another transportation supervisor and requested that the Respondent be removed from his employment as a bus driver at Pinellas Park High School. The Respondent was called to a meeting with the administrator of the School Board's Office of Professional Standards. During the discussion of the matter, the Respondent admitted that he had hugged and kissed T.C. on campus. During the discussion, the Respondent also admitted that he and the student had engaged in oral sex in January, 1994. By letter of March 3, 1994, the Respondent was notified that he was suspended with pay and that the superintendent would recommend dismissal to the school board at the meeting of March 23, 1994. A number of stories related to this matter have appeared in the local press, including the March 18, 1994 issues of the St. Petersburg Times and the Tampa Tribune. Engaging in sexual activity with a student is conduct serious enough to impair the Respondent's effectiveness in the school district and to bring the service of the School Board of Pinellas County into disrepute.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order terminating the employment of Howard Jessie. DONE and RECOMMENDED this 21st day of November, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1876 The Respondent did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. COPIES FURNISHED: Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County P. O. Box 2942 Largo, Florida 34649 Keith B. Martin, Esquire Pinellas County School Board P.O. Box 2942 Largo, Florida 34649 Mr. Howard Jessie 15695 Waverly Street, Apartment 2 Clearwater, Florida 34620
The Issue This case concerns the issue of whether the Respondent should be dismissed from her teaching position in the Dade County School System for incompetence and willful neglect of duty. At the formal hearing, the Petitioner called as witnesses Patrick Gray, Richard Artmeir, Willie Joseph Wright, Jesselyn Brown, Olga Miyar, and Ira Wax. Respondent testified on her own behalf. The Petitioner offered and had admitted into evidence three exhibits. The Respondent offered and had admitted five exhibits during the course of the hearing. Respondent's Exhibit 6 is a late-filed exhibit accompanied by a stipulation entered into between the parties to this action. This was admitted as a late-filed exhibit and is part of the record. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact At all times material, the Respondent was employed as a teacher by the Dade County School Board. Pursuant to a stipulation by and between the parties, the following facts are found: During the 1981-82 school year, Bertha Altuzarra was employed by the Dade County School Board and was located at Riverside Elementary. From January 4, 1982, to June 18, 1982, Respondent was absent on personal leave due to the death of her mother. On August 25, 1982, she was ordered to return to work at Riverside Elementary. Between August 27, 1981, and January 4, 1982, the Respondent was assigned to Riverside Elementary School. During this time period, she was absent from her teaching position thirty-five days. Many of the absences were without any notification to the school. Under her contract with the School Board, she was entitled to 10 days of personal leave during the school year. Prior to December 16, 1982,the Respondent had made no request for personal leave. At a conference on November 20, 1981, Respondent was given a memorandum by the assistant principal of Riverside Elementary School. The memo (Petitioner's Exhibit 3) related to the Respondent's absences from her class and the adverse affects that such absences were having on her class and the school. As of the date of the memo, Respondent had been absent 20 days and present 33 days. The following problems were noted in the memorandum: Excessive absences-33 days present; 20 days absent - causing: severe disruption in student program disruption in classroom teachers' plans administrators' inability to conduct formal observation. You were scheduled for an observation today but you were absent. Loss of mandatory parent permission letters for one of your classes that is now scheduled for another teacher. Failure to submit all class rosters - timeline given: today. Failure to adhere to class times as scheduled: tardiness in meeting groups early dismissal of students Failure to manage classroom and maintain student control: several staff members have broken up disruptions in your groups. The school monitor has been repeatedly summoned to your classroom. These problems were discussed by the assistant principal Olga Miyar, with Mrs. Altuzarra. Subsequent to the conference with the assistant principal, the Respondent continued to accumulate absences. On December 11, 1981, the Respondent was sent a memo from the principal of Riverside Elementary School regarding the absences and inquiring about Respondent's intentions for the remainder of the school year. (See Petitioner's Exhibit 2). On December 16, 1981, Respondent received the memo and responded by letter stating that her mother had been seriously ill and that she intended to be back at her class on December 17, 1981. (See Respondent's Exhibit 2). As of December 11, Respondent had been absent from her class a total of 32 days. Respondent returned to the school on December 17, 1981, and acknowledged she had had some problems with absences but that she would be back after the holiday and do her job. Pursuant to a request and authorization, Respondent went on personal leave without pay beginning January 4, 1982. As of January 4, 1982, when her leave began, the Respondent had been absent from her class a total of 35 days since August, 1981. On or about April 7, 1982, Respondent, while on leave without pay, was sent a letter requesting that she provide the School Board with a letter as to whether she intended to return to active teaching status when her leave ended on June 18. The Respondent's letter of intent was due within 30 days. As of June 7, 1982, no letter or response had been received from Respondent and a second letter was sent to her by the personnel office. On July 12, 1982, the personnel office was informed that Respondent intended to return to active teaching status. Sometime prior to August 25, 1982, Respondent received written notification to return to Riverside Elementary on August 25, 1982. When Respondent reported to Riverside Elementary School on August 25, 1982, she was informed by the principal, Jesselyn Brown, that she had been assigned to another school and was no longer assigned to Riverside Elementary. Ms. Brown called the Area Office and informed Mrs. Altuzarra that the Area Office requested she go to the Area Office. Ms. Brown also informed Mrs. Altuzarra that her position had been reallocated to a different school and that as a result, she had been surplused and reassigned to Pine Villa Elementary School. On August 26, 1982, Respondent again reported to Riverside Elementary School and was again told by the principal, Ms. Brown, that she was assigned to Pine Villa Elementary, not Riverside Elementary. She was again instructed by the principal to report to the Area Office. Mrs. Altuzarra was also informed by the area personnel director and a line director that she was assigned to Pine Villa Elementary and that she should report to Pine Villa. Sometime later, Ms. Brown received a call from Mr. Pollock, a representative of the teacher's union, and she also explained to him that Mrs. Altuzarra had been surplused and was no longer assigned to Riverside Elementary. On August 31, 1982, Respondent received a telephone call from Dr. Willie Joseph Wright, the principal of Pine Villa Elementary School. He informed her she was assigned to Pine Villa and asked why she had not reported to the school. Respondent stated that she had heard about Pine Villa and it was too far from her home and that she was not going to report. On September 20, 1982, the Respondent met with Mr. Meers, Director of the South Area to which Respondent was assigned. He instructed her to report to Pine Villa. This meeting occurred at approximately 11:30 a.m. and the Respondent never reported to Pine Villa. The Respondent, in the meeting with Mr. Meers, stated she would report to Pine Villa Elementary. Sometime prior to September 20, 1982, Respondent also received a telephone call asking her to report to Caloosa Elementary School for a possible position there. She went to Caloosa Elementary, but was informed by the principal that there was no position for her at Caloosa Elementary. The Respondent had not received a letter or writing of any type requesting her to report to Caloosa Elementary. On November 3 1982, Respondent and Mr. Bennie Pollock, United Teachers of Dade County representative, met with Mr. Richard A. Artmeir, Supervisor of the Division of Personnel Control, to discuss Respondent's failure to report to Pine Villa Elementary School and to also discuss her excessive absences during the 1981-82 school year. Subsequent to the meeting, Respondent was sent, by certified mail, a memorandum of the conference which included a reprimand for having willfully been absent from her assigned work location without authorization. On October 15, 1982, Dr. Ira Wax, the Assistant Superintendent of the Office of Personnel, submitted to the Executive Director of the Division of Personnel Control of the Dade County School Board, a recommendation that dismissal proceedings be initiated against the Respondent. Respondent testified that the only reason she never reported to Pine Villa Elementary was because she had not received a letter or writing assigning her to Pine Villa.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter an order dismissing the Respondent and denying her request for back pay. DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 21st day of July, 1983. COPIES FURNISHED: Jesse James McCrary, Jr., Esquire 3050 Biscayne Boulevard Suite 800 Miami, Florida 33137 William DuFresne, Esquire Ellen L. Leesfield, Esquire DuFresne & Bradley 1782 One Biscayne Tower Two Biscayne Boulevard Miami, Florida 33131 Dr. Leonard Britton Superintendent of Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
Conclusions WHEREAS, Respondent appealed her termination to the Pinellas County Sheriff's Civil Service Board (the “Board”); and WHEREAS, the appeal was transmitted to the Department of Administrative Hearings Administrative Law Judge for evidentiary hearing and recommended order; and WHEREAS, the Respondent, Pamela L. Wilson, voluntarily forfeited her right to appeal by letter to the Department of Administrative Hearings Administrative Law Judge dated September 23, 2013; and WHEREAS, Petitioner, Pinellas County Sheriffs Office, filed a Motion to Dismiss; and WHEREAS, in response to that Motion to Dismiss, the Administrative Law Judge issued an order (attached hereto and incorporated by reference) closing its file on the appeal and relinquishing jurisdiction to the Board; and “WHEREAS, Petitioner requested this Board take final agency action to accept the Administrative Law Judge’s disposition of the appeal; and WHEREAS, on October, 9, 2013, the Pinellas Board met at a duly noticed meeting to hear Petitioner’s request and reviewed the Respondent’s September 23, 2013 letter, the Petitioner’s Motion to Dismiss and the Administrative Law Judge’s Order Relinquishing Jurisdiction and voted to dismiss Pamela Wilson’s appeal by a vote of 5 to 0. NOW, THEREFORE, it is ordered and adjudged that: 1. The Board, by a unanimous vote of five (5) members, hereby dismisses the appeal of Pamela Wilson. Page 1 of 2 2. The parties are hereby notified of the right to appeal this Final Order to the Second District Court of Appeal by filing notice of intent to do so upon the Clerk of Court and the Pinellas County Sheriffs Civil Service Board within thirty (30) days of the date of this Order. IT IS SO ORDERED this_//zyw_ day of October, 2013. Lt. Col. Neal A. White, Chairman Pinellas County Sheriff’s Civil Service Board CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above Final Order has been furnished by U.S. Regular Mail to: Paul G. Rozelle, Associate General Counsel Ms. Pamela Wilson Pinellas County Sheriff's Office 518 Still Meadows Circle West 10750 Ulmerton Road Palm Harbor, FL 34683 Largo, FL 33778 this | xe day of October, 2013. p Carole Sanzeri Senior Assistant County Attorney 315 Court Street, 6" Floor Clearwater, FL 33756 Phone: 727-464-3354 / Fax: 727-464-4147 Attorney for the Sheriff's Civil Service Board Copy to: Members of the Sheriff’s Civil Service Board Lizzie F. Bogan, Administrative Law Judge HAUSERS\ATYKB03\WPDOCS\CS\SHERIFF CIVIL SERVICE BOARD\APPEALS\WILSON PAMELA\FINAL ORDER.DOCX Page 2 of 2
