The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.
The Issue The issue is whether Respondent discriminated against Petitioner by committing an unlawful employment action contrary to Section 760.10, Florida Statutes.
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992. Petitioner, an African-American female, began working in the Financial Aid Office at Florida State University as a student from 1978 to 1983. After receiving her undergraduate degree, Petitioner worked for Florida State University as a Financial Aid Specialist, administering Pell Grants from 1983 to 1989. In September of 1989, Respondent hired Petitioner to work in its Financial Aid Office as a Financial Aid Specialist. In July 1991, Petitioner became Respondent's Director of Financial Aid; she worked in that capacity during the 1996-97 school term. Mr. Tom Hanna, Respondent's Vice President for Administrative Services, was Petitioner's supervisor after she became Director of Financial Aid. From July 1991 through June 1996, Mr. Hanna gave Petitioner an overall performance rating of "above satisfactory." During the 1996-97 school year, Respondent's President, T. K. Wetherell, became concerned that students were not receiving timely notice of their financial aid awards. Untimely receipt of financial aid awards was a problem for Respondent because many students received financial aid. Respondent formed the Enrollment Retention Committee in the Spring of 1997. The purpose of the committee was to consider issues impacting student retention, such as financial aid. Mary Coburn, Respondent's Assistant Vice President for Student Services, was the Chairperson of the Enrollment Retention Committee. From the beginning, Ms. Coburn was concerned about problems with the delivery of financial aid to students. She received complaints from students about the Financial Aid Office losing documents and the inability of the staff to answer questions. The Enrollment Retention Committee formed a subcommittee to review financial aid operations. Dr. Marge Banocy-Payne was a member of the subcommittee. Dr. Banocy-Payne also was concerned about complaints from students about delays in receiving financial aid payments and problems with the attitudes of the financial aid staff. Petitioner worked with the subcommittee to find ways to improve financial aid services. In April 1997, the committee made 30 recommendations on ways that Petitioner could improve the Financial Aid Office. Mr. Hanna met with Petitioner at least five times during the 1996-97 school year to discuss multiple issues in the operations of the Financial Aid Office. Mr. Hanna meant for these meetings to serve as counseling sessions regarding Petitioner's ineffective performance. Mr. Hanna did not memorialize these meetings in writing because he believed Petitioner had been a loyal employee. Instead, Mr. Hanna felt that the problems in the Financial Aid Office were temporary and that Petitioner's job performance would improve. In June 1997, President Wetherell and Mr. Hanna requested Ms. Carmelita Tudor, Respondent's Director of Human Resources, to investigate allegations of improprieties in the Financial Aid Office. Ms. Tudor found no evidence to support these allegations. However, Ms. Tudor concluded in a June 12, 1997, written report that Petitioner was no longer an effective director of the Financial Aid Office and that Respondent should remove Petitioner from her position immediately. Ms. Tudor's recommendations were based in part on Petitioner's procrastination in filling vacant positions in the Financial Aid Office. The failure to promptly fill the positions compounded the workload and delayed the processing of Student Aid Reports for students who were waiting for financial aid. For example, an employee in a Veteran Affairs Specialist position gave Petitioner oral notice in June 1996 that the employee intended to retire. In August 1996, the employee gave Petitioner written notice that the employee would retire in January 1997. Mr. Hanna gave Petitioner authority to hire a replacement for the Veteran Affairs Specialist before January 1997 so that the retiring employee could train the new employee. Petitioner did not request that Respondent advertise for the vacant position until May 1997. The position was re-advertised in July 1997. The position was finally filled in September 1997. Mr. Hanna decided that Respondent should be transferred from her position as Director of Financial Aid. The decision was based on Petitioner's ineffective performance during the 1996-97 school term. The office had become dysfunctional and appeared to be incapable of providing financial aid to a significant number of students in the next school year. The decision to transfer or demote Petitioner was based on the following management issues: (a) Petitioner's failure to remain current with the job knowledge that was necessary to perform her duties, specifically in the areas of staff workload and staff morale; (b) Petitioner's failure to timely fill two full-time job vacancies in the office, adversely impacting the ability of the office to function adequately; (c) Petitioner's failure to ensure that the office produced a satisfactory quantity of work, evidenced by the volume of unprocessed aid requests; (d) Petitioner's failure to establish a dependable management style, requiring only minimum supervision; (e) Petitioner's failure to establish office management practices to eliminate unnecessary stress on staff and to ensure the respect of her staff; (f) Petitioner's failure to demonstrate initiative, making it necessary for the Enrollment Management Committee and other college personnel to examine the office in order to suggest ways to improve overall office performance; and (g) Petitioner's failure to exercise management judgment to discern problems and develop solutions or to implement plans of action developed by her colleagues and Mr. Hanna. By letter dated June 16, 1997, Mr. Hanna notified Petitioner of Respondent's intention to demote Petitioner to another position. Respondent scheduled the predetermination conference for June 25, 1997, so that Petitioner could respond in writing and orally to Respondent's proposed action. Petitioner's husband subsequently informed Mr. Hanna that Petitioner had been advised by her medical doctor to avoid any activities that might engender stress, tension, or anxiety for a period of 30 days. On July 1, 1997, Respondent increased the salary of the Financial Aid Director from $45,770.50 annually to $48,059.02 annually. This raise was not related to Respondent personally or to her performance. Instead, it was the result of an effort to standardize the salary for the position compared to the salary of financial aid directors at other institutions and the salaries of peer positions. Respondent's staff insisted that the pay grade for the position of financial aid director be changed even though Petitioner's job performance was substandard. By letter dated July 2, 1997, Petitioner's medical doctor advised Mr. Hanna that Petitioner was being treated for depression and would be unable to attend a July 15, 1997, predetermination conference. Respondent conducted the conference on July 31, 1997. Petitioner authorized her husband to speak on her behalf at the conference. On or about August 4, 1997, Respondent advised Petitioner that she was being transferred to a position with the Big Bend Job and Educational Council, effective August 11, 1997. Petitioner's new job as a WAGES Administrative Assistant had a salary rate of $36,000 annually. Respondent elected to transfer Petitioner to another position rather than terminate her or offer her a probationary period in her position as director of financial aid. Respondent did not want to damage Petitioner's career or cause her to lose benefits. Respondent did not believe that Petitioner could successfully complete a probationary period in her position as director of financial Aid in which she would have been required to show significant progress. On August 13, 1997, Petitioner filed her Charge of Discrimination with FCHR. On August 15, 1997, Petitioner filed a grievance claiming that Respondent's decision to transfer her was "inappropriate and unfair." This complaint initiated the grievance process set forth in the classified staff manual. On August 28, 1997, Ms. Coburn upheld Mr. Hanna's decision to transfer/demote Petitioner. Ms. Coburn handled Petitioner's grievance at Step III because Mr. Hanna was Petitioner's direct supervisor. Mr. Hanna conducted Petitioner's annual employee evaluation for the period of July 1, 1996, through June 30, 1997. In preparing the evaluation form, Mr. Hanna noted the deficiencies in Petitioner's job performance. Mr. Hanna gave Petitioner an unsatisfactory rating regarding her knowledge of her job, the quality of her work, the quantity of her work, dependability, responsibility, initiative, judgment, attitude and attendance. Mr. Hanna attempted to furnish Petitioner with the evaluation personally but was unable to arrange an interview with Petitioner. Mr. Hanna eventually mailed the evaluation to Petitioner on or about September 4, 1997. On September 8, 1997, Petitioner filed her Step IV grievance with President Wetherell. On September 16, 1997, President Wetherell upheld the decision to transfer/demote Petitioner and denied her grievance. On October 9, 1997, Petitioner filed her Step V grievance, seeking review by the Board of Trustees. President Wetherell responded to the Step V grievance on November 14, 1997. On or about November 26, Petitioner received copies of documents to be presented to the Board of Trustees. On December 1, 1997, Petitioner and Respondent's representatives addressed the Board of Trustees. After reviewing the matter, the Board of Trustees approved the decision to transfer/demote Petitioner from her position as financial aid director to WAGES Administrative Assistant. Respondent employed Petitioner at the Big Bend Job and Education Council until May 10, 2000. During that time, Petitioner received employment promotions and salary increases. On May 10, 2000, Respondent concluded its administration of the Big Bend Job and Education Council. As of the time of the final hearing, Petitioner continued to be employed as the One-Stop Coordinator for the Big Bend Job and Education Council. The program is now administered by a private, non-profit organization. In the 1994-95 school term, Carlotta Appleman was employed as Respondent's Computer Systems Manager. She was responsible for all of Respondent's information technology services. In the 1994-95 school term, Respondent employed Norm Cave, an American Indian/Alaskan Native male, as a programmer analyst. Mr. Cave had no supervisory responsibilities or direct contact with Respondent's students. Ms. Appleman was Mr. Cave's supervisor. In the last half of 1994, Ms. Appleman placed Mr. Cave on probationary status because of issues involving interpersonal relations and insubordination. Ms. Cave's probation was not based on the quantity and quality of his work or job performance. Mr. Cave failed to resolve the issues of interpersonal relations and insubordination during his probation. Mr. Cave resigned his position effective August 31, 1995. As director of financial aid, Petitioner had supervisory responsibilities over employees and was charged with direct student contact. Petitioner was transferred/demoted because of her job performance deficiencies. There are no similarities in the employment situation involving Mr. Cave compared to the employment situation involving Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue This matter was referred by the Public Employees Relations Commission to the Division of Administrative Hearings for hearing to determine: Whether the Respondent, Seminole County, is a Public Employer within the meaning of Chapter 447, Florida Statutes. Whether the Petitioner, Union, is an employee organization within the meaning of Chapter 447, Florida Statutes. Whether there has been a sufficient showing of interest has required for the filing of a representation election petition under Chapter 447, Florida Statutes. Whether the employer organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees within the Public Employer? PRE-HEARING MATTERS Prior to the commencement of the hearing, Respondent filed the following motions with the Hearing Officer who made the indicated disposition of the motion: Motion for Discovery; denied on the basis of prior PERC rulings. Motion to Transfer Jurisdiction to Local PERC; denied because the local ordinance had not been approved by the Public Employees Relations Commission. Motion for Oral Argument on Motion to Transfer Jurisdiction; denied, see Petitioner's Motion to Amend, below. Motion to Dismiss Based on Employer Not Having Denied Recognition; denied. Motion to Dismiss or Limit Hearing on the Basis that Local PERC Ordinate Controls; denied. Motion to Dismiss on the Basis of Inappropriateness of Units Sought; denied. Motion to Quash Hearing on Basis that Acting Chairman Lacked Authority to Notice Hearing; denied. Motion to Dismiss on Basis of Lack of Due Process and Lack of Authority; denied. The Petitioner moved orally in response to the suggestion that paragraph 11 of the Petition indicated concurrence in local PERC authority to amend paragraph 11 to "no". Motion was granted by the Hearing Officer. After having presented its motions the Respondent thereafter filed its Answer, asserting therein certain affirmative defenses. Succinctly stated the position of the Respondent was that the county had defined the appropriate units within the Public Employer by local ordinances as professional, supervisory and blue collar, and that the unit sought by the Petitioner did not conform to the units the County had defined by ordinance. The Petitioner sought all employees of the Road and Arthopod Divisions of Seminole County excluding officers, clericals, supervisory and guard employees.
Findings Of Fact The Hearing Officer directed the Employer to go forward and present its evidence in support of its definition of the units. The Employer sought to call Pat Hill and Jack McLean, both previously subpoenaed by the Employer. Neither of the individuals were present in the hearing room. The Hearing Officer, noting that the time had not expired to oppose the subpoenas but that no opposition had been filed, allowed the Employer to proffer the testimony these witnesses would have given if present. The Hearing Officer notes that subsequently these subpoenas were quashed. Therefore, the proffered testimony will not be considered by the Hearing Officer. The Hearing Officer would, in light of the fact that the Commission's file was not present at the hearing, direct the Commission's attention to the proffer as it relates to the Commission's file for resolution of any matters appropriately raised. The Employer then called Carl Crosslin who was present but whose subpoena had been timely opposed by his Counsel. The subpoena having been issued by the Acting Chairman, the Hearing Officer deferred to the Acting Chairman for his ruling on the subpoena in question. The Hearing Officer allowed the Employer to proffer the testimony which would have been presented by Carl Crosslin and Commissioner Paul Parker. Thereafter, the Employer moved for a continuance which motion was denied by the Hearing Officer. The Employer then made a demand for presentation of the authorization cards, which were not present at the hearing. The Employer then sought to introduce the affidavit of Chris Haughee which was rejected by the Hearing Officer. The Employer then filed its motion for Determination of Managerial and Confidential Employees. This motion is preserved for consideration by the Commission. It is appropriate to note at this point that upon the conclusion of the taking of testimony the Petitioner amended its petition to seek a unit composed of non-exempt employees of the Road Construction and Maintenance Division, the Heavy Equipment and Vehicle Maintenance Division, and Arthopod Division of the Public Works Department of the County of Seminole, or in the alternative, all non-exempt employees of the Public Works Division and as a final alternative, a unit of all blue collar workers of the Public Employer who are in construction, maintenance and trades, but excludes clerical, secretarial and similar positions. The parties also stipulated to the managerial status of division directors within the Administrative Services Department and their secretaries. However, in light of the fact that not all division directors within the employ of the Public Employer were not included within the stipulation, and further, because the Employer has filed a motion for Determination of Managerial and Confidential Status and because the stipulation between the parties would not be binding upon others who might have an interest, the facts relating to the duties and functions of division directors and similar positions are set forth so that the Public Employees Relations Commission may resolve the status of these employees as it relates to the motion filed by the Public Employer. The general organization of the Public Employer is indicated on Exhibit 6. The Board of County Commissioners, as the elected representatives of the citizens of Seminole County, head the Public Employer. An executive assistant manages the office and staff of the Board of County Commissioners and functions as general coordinator for the other department heads of the county government. Each of the several departments of government is headed by a department head. Each department head is directly responsible for the management of his department to the Board of County Commissioners. Although the executive assistant, as a coordinator, would have some coordinating function with the department heads, the department heads are the first level of management below the Board of County Commissioners. The department heads prepare the budgets for their department, manage and direct their personal staffs and their division heads, make policy within their department, and participate in the resolution of grievances. They have the authority to hire and fire all employees making less than $10,000 per year and they participate in evaluations of all employees. Department heads have the ability to effectively recommend the employment and discharge of division heads and employees making more than $10,000 per year. All of the department heads meet on Mondays to discuss their joint duties and coordinate their activities. The division heads or directors have the authority to effectively recommend hiring and firing of personnel. The division heads assign work and determine the manner in which work shall be done by their subordinates. The division heads have the authority to discipline their personnel or effectively recommend disciplinary measures dependent upon the action taken. Division directors prepare and submit budget data to the department heads upon which the departmental budget is based. The division heads constitute the second level of supervision or management in county employment. Among their other functions they make determinations regarding the manner in which programs will be accomplished and participate in the resolution of grievances. In all but the smallest divisions and in all of the departments, the department heads and division directors have secretaries assigned to them to handle their personal correspondence, In the larger divisions and in the majority of the departments there are additional clerical personnel assigned to handle general typing and filing and to maintain fiscal records. The parties with regard to the RC petition in question have stipulated that the secretaries to the department heads and division directors should be excluded as confidential. There are divisions within the county government whose function is primarily administrative and whose employees perform administrative duties. These divisions or activities would include the Personnel Division, Microfilm Division, Division of Manpower Planning, Purchasing Division, Office of Management and Evaluation, Veterans' Service Officer, Division of Social Services and Seminole County Industrial Development Authority. In the aforelisted activities, all of the personnel are involved in totally administrative functions. In addition to these totally administrative divisions or activities, there are additional divisions in which there are mixed administrative and other functions. The administrative employees of these divisions would include Switchboard Operators and the Mail Clerk in Support Services Division; the Biologists in Operations Division of the Department of Environmental Services; the Operator Inspector, Pollution Control Technician, Account Clerk in the Division of Environmental Control of the Department of Environmental Services; Cashiers within the Division of Motor Vehicles of the Department of Public Safety; the Deputy Civil Defense Director in the Division of Civil Defense, Department of Public Safety; Permit Clerks and a Secretary II of the Building Division of the Department of County Development; two Secretaries and a Site Planner within the Office of the Land Development Administrator, Division of Land Development, Department of County Development; a Secretary, two Draftsmen, two Planners, Drafting Technician II, Planner (current plans), Senior Planner, Principal Planner and County Planner within the Planning Division of the Department of County Development. The following personnel hold positions within the county government below that of division director and perform functions which are not clerical or administrative in nature. These remaining personnel will be discussed by division. Within the Building Maintenance Division there is a Supervisor of Custodial Services, Supervisor of Courthouse Custodians, and Building Custodian Supervisor, all of whom report to the Director of Building Maintenance. The Supervisor of Courthouse Custodians directly supervises the fifteen custodians assigned to the Seminole County Courthouse. The Supervisor of Custodial Services supervises the custodians assigned to the maintenance of the other county buildings. The Building Custodian Supervisor supervises the electrical, carpentry, plumbing and air conditioning foremen under whose direction maintenance workers perform such maintenance as is required upon the various county buildings. These three supervisors have the authority to effectively recommend hiring, firing and disciplinary action and assign specific work to those employees under their direction. These supervisors constitute the first level of direct supervision over the county employees for although there are trades foremen designated they function as lead workers. Within the Support Services Division there are three Night Watchmen who are responsible for security of the County Courthouse and one Senior Night Watchman who assigns the work shifts of the Watchman. The testimony would indicate that the Senior Night Watchman functions in the role of a lead worker. It should be noted that this Division does not have a division director but is under the control of the acting executive assistant. Within the Division of Human Services is the Office of Animal Control which is headed by the Animal Control Officer. The Animal Control Officer is responsible for the operation of the County Pound and the supervision of the work of the four Animal Control Officers. He is assisted in his functions by the Animal Control Supervisor who is specifically charged with maintenance of the County Pound. The Animal Control Officer has authority to recommend hiring, firing and discipline of these employees who he evaluates. Within the Operations Division of the Department of Environmental Services there is a Chief Operator and three Operator Trainees who are responsible for the operation and maintenance of the county's water and sewage treatment facilities. The Operator Trainees are under the direct supervision of the Chief Operator whose responsibility is to train then to operate the system and to assign their duties. The Operator Trainees perform maintenance, read meters, and perform such other duties as the Chief Operator assigns necessary to the operation of these facilities. Within the Office of the Director of Public Safety and under the Director's control is Fire Prevention and Arson Investigator, a Training Officer, and two Mechanics. The Investigator and the Training Officer are trained firefighters. The two Mechanics are physically located at Station 14 and are responsible for the maintenance of the County Fire Department's Vehicles. The Fire Department is divided into three shifts or platoons. Each shift or platoon being supervised by a Sector Fire Coordinator. The Sector Fire Coordinator prepares the budget for his shift, establishes field operating procedures, and directs fire fighting, and has access to the personnel files of the employees. Also within the Department of Public Safety is the Communications Division which at present relates primarily to the Fire Department but which will in the future also encompass the 911 telephone number. The Communications' personnel are under the supervision of the Communications supervisor. The Communications' personnel are generally not firefighters, but receive emergency calls and dispatch equipment. Within the Motor Vehicle Inspection Division of the Department of Public Safety there are three Inspection Stations located within the county. The Motor Vehicles Inspection function is under the supervision of the Motor Vehicles Inspection Supervisor who acts as a division director and effectively recommends hiring and firing and discipline of employees and who helps prepare the budget for the Motor Vehicles Inspection activities. He is also responsible for work assignments and development of work procedures. Each Inspection Station is under the direction of a Chief Inspector who is responsible for assigning work at each station and responsible for the function thereof. There are four Motor Vehicle Inspectors at each Inspection Station and one Cashier. Within the Division of Parks and Recreation of the Department of County Development there is a Parks Coordinator/Designer who can effectively recommend hiring and firing and disciplinary action of personnel within the Division. The Parks Coordinator/Designer is also responsible for the direct or specific supervision of work. He functions as an assistant division director. The Parks Supervisor is also able to effectively recommend hiring, firing and disciplinary action. The Parks Supervisor provides direct supervision of the five Maintenance Workers, the Equipment Operator II, and three Trades Workers assigned to the Parks and Recreation Division. In addition to the positions enumerated above there are an additional twenty-nine CETA Workers assigned to Parks and Recreation primarily in the grades of Maintenance Worker and Equipment Operator. Within the Building Division of the Department of County Development the construction inspection function within the county is the responsibility of the Building Official who functions as the division director of the Building Division. He is assisted in his duties by the Plans Examiner who functions as the Deputy Building Official. Both employees have the authority to effectively recommend the hiring, firing and discipline of their subordinate employees. The actual inspection of construction is carried out by one of ten inspectors. There are three Chief Building Inspectors; one assigned to general construction, one to electrical, and one to plumbing, There are six Inspectors who work under the three Chief Inspectors and one Trailer or Mobile Home Inspector who reports directly to the Building Official. Within the Land Development Division of the Department of County Development is the Zoning Department. The Land Development Administrator functions as the division director. He is assisted in his Duties by the Zoning Administrator who acts as the Assistant Division Director. Both employees have the authority to effectively recommend hiring, firing and disciplinary actions. There are three Inspectors assigned to the Land Development Division. One inspects for compliance with the County Tree Ordinance, one inspects with regard to commitments made to the county by developers and the third inspects for violations of the county zoning code. The Engineering Division of the Department of Public Works is responsible for three basic functions: Traffic engineering, design and survey, and survey and inspection. The Traffic Engineer is responsible for the traffic engineering activity and supervises the other employees directly. Signs are prepared in the County Sign Shop which is under the supervision of the Sign Shop Foreman. An Electrician is also assigned to this activity together with an Electronics Technician. They are responsible for the installation and maintenance of traffic signals. A Radio Technician is also assigned to the Traffic Engineer activity. The Radio Technician is responsible for the repair of all county radios. The Design and Survey activity consists of a Design Engineer and a Design Technician who design and draft plans for county construction projects. The Assistant County Engineer heads up the survey and inspection type activity for the Engineering Division. He is responsible for the county's two survey crews which are made up of a Party Chief and three to four crew members. The Assistant County Engineer is responsible for directing the work functions and activities of his subordinates and has the authority to effectively recommend hiring, firing and discipline. The Assistant Road Superintendent is in charge of the Road Construction and Maintenance Division of the Department of Public Works. He is assisted in the performance of his duties by two foremen and three to four crew leaders. The Road Maintenance function contains three supervisors, two of which supervise a foreman and two crew leaders and the third supervisor who supervises a crew leader. Under each crew leader there are from four to six maintenance workers or equipment operators. The Assistant Road Superintendent and the three supervisors in maintenance all function in assigning work to crews and individuals and supervising the work activity. In addition, the Assistant Road Superintendent acts as the assistant to the Road Superintendent who functions as the division director. Both men would have authority to effectively recommend hiring, firing, and disciplinary action together with the three supervisors, The Division of Heavy Equipment Maintenance is under the supervision of the Shop Foreman who functions as a division director, He is assisted by the Parts Manager who acts as the assistant division director. The position of Chief Mechanic is currently vacant and the duties are being performed by the Assistant Chief Mechanic. The primary function of the Parts Manager is the purchasing and stockage of spare parts. The Shop Foreman, Parts Manager and Assistant Chief Mechanic all have the authority to effectively hire, fire and recommend discipline. These three individuals would also provide evaluations of the mechanics, mechanic helpers and equipment servicemen assigned to the Heavy Equipment Maintenance Division. The Arthropod Division of Seminole County is responsible for refuse disposal. The division director is the Refuse Superintendent. Working under him are the Refuse Supervisor and a Landfill Foreman. The Landfill Foreman is responsible for supervision of the actual landfill operations and directly is responsible for three Equipment Operator III's and an Equipment Operator IV. The Landfill Foreman is also responsible for supervision of truck drivers while they are at the landfill area. The Landfill Foreman, Refuse Supervisor and Refuse Superintendent (division director) all have the authority to effectively recommend hiring, firing and discipline and to make work assignments and to evaluate performance. There were approximately twenty-eight employees within the Arthropod Division at the time of hearing. With regard to the employees of the county generally the testimony indicates that all employees of the county are entitled to the same vacation, retirement, and insurance benefits and that their salaries are established within the framework of the pay classification plan. The Petitioner has argued that each division is a totally independent unit, therefore, a unit composed of employees of the Arthropod and Road Construction and Maintenance Divisions of the Department of Public Works would be appropriate. The Employer has urged that the employees of the county be divided into three units: (1) all professional employees (2) all supervisory employees and (3) all employees not contained in the first two units. The Employer's proposal would appear to lump all the clerical employees, all custodial and maintenance employees, and certain highly skilled or specially trained employees in the same unit. The record does not support the Petitioner's contention that the divisions of Seminole County government are independent. The record clearly indicates that divisions are subordinate to the departments of which they are a part. The record further indicates that even departments are not totally independent or autonomous since the department heads are responsible to the County Commission which in turn establishes the salaries and other benefits of employment for all employees of the county. The record clearly indicates that a unit limited to the Arthropod and Road Divisions or even to the Public Works Department would not encompass many employees with essentially the same job functions and in some instances the same job titles and pay classifications. There are maintenance workers, equipment operators and certain custodial personnel and mechanics located in other divisions of county government. The position of the Employer fails to recognize the disparity of interest between the employees which would be "left over" and compose the third unit it has proposed. The record indicates that there are essentially three types of employees below the grade or position of division director as follows: (1) Clerical, (2) Maintenance/Custodial, and (3) Highly skilled. A large portion of the total number of county employees would fall into the clerical category to include secretaries, clerk typists, filing clerks, and fiscal assistants. The maintenance/custodial category would appear to be the next largest grouping of employees and would include custodial and maintenance workers, vehicle operators, watchmen, and mechanics. The highly or specially skilled category would include various planners, biologists, draftsmen, personnel specialists, zoning and building inspectors, and the highest level of skilled trades workers and sanitariums. Based upon the foregoing categorization of county employees, the unit composed of maintenance/custodial employees would encompass all of the job titles and job classifications sought by the Petitioner within the Department of Public Works and consolidate a substantial portion of the total number of county employees who share similar duties and work environments. A unit composed of this category would be almost identical to the last alternative unit sought by Petitioner. At the same time it would prevent fractionalization within county government and better meet the criteria stated in Section 447.009(4), Florida Statutes. This report is respectfully submitted this 11th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Thomas J. Pilacek, Esquire Bowels & Pilacek 131 Hark Lake Street Orlando, Florida 32803 David Richeson, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Henry Swann, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issues to be determined are whether Cristal Palace Resort PB, LLC (Cristal Palace), committed the statutory or rule violations alleged in the Administrative Complaints in Case Nos. 17-2149 and 17-2164, and in the Second Amended Notice of Intent to Deny docketed as Case No. 17-3849; and, if so, what penalty is authorized for the violations proven.
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing, the following facts are found. The Agency is the state agency charged with licensing of assisted living facilities (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. The Agency is charged with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure and operation of ALFs. The Survey Process In furtherance of its statutory directive, the Agency conducts inspections, which are commonly referred to as surveys, of licensed providers and applicants for licensure to determine whether the applicant or licensee is in compliance with the regulatory scheme. Surveys can be in response to a complaint or to determine compliance as part of the biennial re-licensure process. Surveyors are Agency personnel who have been trained to conduct interviews, review documentation, and make observations at the surveyed facility as part of this process. Regardless of the reason for the survey, any noted issues are written up in a Statement of Deficiencies prepared by the surveyor or surveyors participating in the survey and referred to here as the survey documents. Deficiencies are classified by a “tag,” which is an identifier of the regulatory area found to be deficient. Where deficiencies are noted, the facility is usually afforded 30 days to correct any identified non-compliance. Section 408.811(5) also provides that the Agency may require submission of a plan of correction, which, if required, must be submitted within 30 calendar days after notification unless an alternative time frame is required. When a deficiency is noted during a survey, it is assigned a “class” to indicate its severity and the gravity of its probable effect on clients. The classes are established in section 408.813(2) and (3) as follows: (2)(a) Class “I” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines present an imminent danger to the clients of the provider or a substantial probability that death or serious physician or emotional harm would result therefrom. The condition or practice constituting a class I violation shall be abated or eliminated within 24 hours, unless a fixed period, as determined by the agency, is required for correction. The agency shall impose an administrative fine as provided by law for a cited class I violation. A fine shall be levied notwithstanding the correction of the violation. Class “II” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A fine shall be levied notwithstanding the correction of the violation. Class “III” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of clients, other than class I or class II violations. The agency shall impose an administrative fine a provided in this section for a cited class III violation. A citation for a class III violation must specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, a fine may not be imposed. Class “IV” violations are those conditions or occurrences related to the operation and maintenance of a provider or to required reports, forms, or documents that do not have the potential of negatively affecting clients. These violations are of a type that the agency determines do not threaten the health, safety, or security of clients. The agency shall impose an administrative fine as provided in this section for a cited class IV violation. A citation for a class IV violation must specify the time within which the violation is required to be corrected. If a class IV violation is corrected within the time specified, a fine may not be imposed. The agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any term or condition of a license. Violating any provision of this part, authorizing statutes, or applicable rules. Exceeding licensed capacity. Providing services beyond the scope of the license. Violating a moratorium imposed pursuant to section 408.814. The number of surveyors that participate in a survey varies, based on the capacity of the facility to be surveyed. In the 17 survey documents at issue in this case, there were multiple surveyors at each visit. Cristal Palace Cristal Palace is a licensed ALF located in Palm Bay, Florida. Cristal Palace first opened in May 2015, under the ownership of Nuri Dorra. Mr. Dorra has experience in a number of industries, but prior to opening Cristal Palace, had no experience in running an ALF. In May 2015, Mr. Dorra became dissatisfied with the existing staff’s level of compliance with agency rules. On May 26, 2015, he wrote to AHCA requesting that the facility be placed in inactive status and assisted in relocating the facility’s four residents to another ALF, so he could use the inactive period to restructure the organization and, hopefully, bring things into compliance. Cristal Palace re-opened in August 2015. Cristal Palace is a 252-bed facility in what was once a hotel. During the course of the surveys, the census at Cristal Palace ranged from four residents to no more than 52 residents. The two Administrative Complaints and the Second Amended NOI are the result of a series of surveys beginning August 26, 2015, through January 15, 2017, in which the Agency cited Cristal Palace for a variety of deficiencies. The First AC charges Cristal Palace with two class II deficiencies, six uncorrected class III deficiencies, and seven unclassified deficiencies. The Second AC charges one class II deficiency and three unclassified deficiencies. The Second Amended NOI alleges that there are multiple class III and unclassified violations that remain uncorrected. To ensure that only those violations actually charged in the Administrative Complaints and the Second Amended NOI are addressed, the factual allegations are addressed count- by-count as alleged in the charging documents. First AC Count I Count I of the First AC contains allegations regarding resident 5 and concerns related to the administration of insulin. Colleen Monroe is a now retired surveyor who participated in a survey conducted August 12, 25, and 26, 2015, for which a survey document dated August 26, 2015, was prepared. Ms. Monroe has been a registered nurse since 1971. While Ms. Monroe was touring the facility on or about August 12, 2015, she saw paramedics enter resident 5’s room, and she followed them in and talked to resident 5. Resident 5 was alert and oriented, and indicated that her blood sugar was high. While Ms. Monroe was present, resident 5’s blood sugar was taken, and it was over 500. Staff for Cristal Palace had called 911, and resident 5 was transported by ambulance to the hospital. Ms. Monroe reviewed the resident records for resident 5 and believed, based on her review of the physician’s orders and the Medication Observation Record (MOR), that the resident was not receiving the insulin her doctor had ordered. She testified that she reached this conclusion because the physician had ordered medium sliding scale insulin and the MORs did not indicate that she was receiving the insulin. An MOR is a document where the staff member giving insulin would document the time of day, and dosage of medication given. The MOR is a chart: on the left hand side is the order for the medication to be given with blocks for each day of the month. Staff administering the medication would initial the appropriate block on the front and sign the back. Ms. Monroe testified that the law does not allow unlicensed staff (defined by statute to include medical technicians (med techs) and certified nursing assistants (CNAs)) to draw up insulin, but neither her testimony nor the First AC, with respect to Count I, identifies the statute or rule that addresses this particular issue.2/ She testified that resident 5 would be unable to draw up her own insulin because of her retinopathy diagnosis, and that this patient needed a level of care that required nursing to be available at all times. However, there was no evidence regarding the progression of this particular patient’s retinopathy, and the extent to which it impaired her vision at the time of the survey. Ms. Monroe was not in the room when the 911 call was made and did not recall looking at the observation logs, but believed she would have looked at everything while she was there. She was not present when the resident’s insulin was given. No evidence was presented to indicate whether the insulin provided to resident 5 before meals had to be drawn up for each dose (which requires a nurse) or whether a pre-filled insulin syringe or pen was used (which does not). The Agency did not provide the doctor’s order, the MOR, or the resident’s health assessment form, commonly referred to as an “1823.” Although the First AC refers to an interview with the facility’s marketing director regarding resident 5’s admission, that individual did not testify, and any reference to the interview in the survey or in Ms. Monroe’s testimony is hearsay.3/ Cristal Palace supplied a copy of resident 5’s 1823. The form, which was completed on August 6, 2015, and signed by resident 5’s physician, indicated that the resident did not require 24-hour nursing care, and that she needed assistance with her medications as opposed to needing medication administration. Ms. Monroe disagreed with the 1823 as completed. A partial MOR4/ for resident 5 indicates that she was provided Humulog insulin each day since her admission on August 8, 2015, at 8 a.m., noon, and 6 p.m. On August 12, 2015, the MOR reflects that the insulin was provided in the morning at 8:00, as well as 20 units of Humulog at 9:22 a.m., at the patient’s request. While Ms. Monroe testified that she would have expected the insulin to be given prior to each meal, there was no evidence presented to indicate what time meals were served in relation to the administration of insulin noted in the record. However, the administration times noted in the MOR correspond to what one could infer to be appropriate meal times. The Agency did not prove a class II violation with respect to Count I. Count II Count II of the First AC addresses whether the supervision of the administrator of the facility is adequate. It incorporates the allegations of Count I and asserts that Cristal Palace’s administrator failed to supervise and administer the operation and maintenance of the facility through a series of allegations, including the management of all staff and the provision of appropriate care to all residents, as required by law. Specifically, paragraph 23 alleges that the administrator failed to ensure that a licensed nurse was available to administer medications to resident 5. To support the allegation, the First AC restates allegations related to the MOR, physician’s order, and 1823 form for resident 5, as well as statements attributed to a marketing director and “nurse C,” neither of whom are identified by name or testified at hearing. Count II alleges at paragraph 24 that the administrator failed to ensure that the facility maintained accurate and up-to- date MORs, based upon staff’s failure to document the administration of Tylenol 324 for resident 5. No testimony was presented at hearing regarding the administration of Tylenol to any resident. On August 12, 2015, the day that resident 5 was taken by ambulance to the hospital, Ms. Monroe walked back into resident 5’s room once the ambulance left. She found resident 5’s medication in an unlocked refrigerator in the room. She did not know whether the facility staff returned to her room to retrieve the medication and lock it up after the EMTs took resident 5 out of her room to the ambulance. The evidence presented did not indicate whether this resident kept her medication in her room, or whether the facility typically stored her medication centrally. If the resident typically kept insulin in her room, which is permitted under the Agency’s rules and likely to be the case, given that the surveyor found it in her refrigerator, the deficiency would have been caused by the fact that the room was unlocked while the resident was being transported to the ambulance. As noted above, the surveyor did not know whether staff came back to secure the room, and, apparently, did not stay long enough to see. If staff had a choice between locking the room first or attending to the resident to make sure she was being transported safely, and then returning to the room, the latter seems to be the wiser choice. Count II also cites the administrator for failing to ensure that the facility maintained a written work schedule reflecting the facility’s 24-hour staffing standards. Surveyors asked for but did not receive the staffing schedule for the month of May 2015, and for August 3 through 12, 2015. No evidence was presented to support the allegation that the administrator failed to ensure that trained dietary staff was available to prepare meals and to ensure that food service was provided in a safe manner, other than a one-sentence summary of what was stated in the survey. Specifically, no testimony was presented by the Agency regarding unlabeled food or food past its expiration date, or about any county health inspection reports issued in August 2015, related to either food or the physical plant.5/ Cristal Palace presented copies of county health inspections from August 3, 2015 (regarding group care), and August 17, 2015 (for food inspection), indicating that the inspections were satisfactory. Similarly, no evidence was presented regarding lights that were not operable. Paragraph 31 includes several allegations regarding resident 5’s use of oxygen. Although Ms. Monroe testified that this resident had oxygen ordered, there is no mention of oxygen use in the 1823 form signed by her doctor, and the Agency did not provide any order for oxygen to substantiate this claim. Moreover, while the surveyor felt that resident 5 should have been a resident receiving extended congregate care (ECC) services for which an ECC plan must be prepared, the determination for ECC services is made based upon the physician’s order as identified in the 1823, which did not indicate that 24/7 nursing services were required. The surveyor’s disagreement with the 1823 does not serve as a basis for a deficiency. Surveyor Lorienda Crawford testified that no activities schedule was posted. The applicable rule requires that an activities calendar must be posted somewhere where residents congregate. Ms. Crawford did not identify where she looked for an activities calendar, but she testified that she did not see or hear any activities the day she was there. The facility has not one, but two rooms designed for activities: one with a pool table and one that is a combination game room/craft room where bingo is played, and there were multiple references to activities, such as bingo and karaoke during the hearing. The facility also provided copies of calendars for May, July, and August 2015.6/ The evidence is not persuasive that activities calendars were not posted. No testimony was presented at hearing that the facility failed to notify AHCA of a change in use of licensed space, or the use of resident rooms by staff members. There was also no testimony at hearing regarding the failure to ensure that the facility was accessible to Agency personnel for inspection. No testimony was presented at hearing regarding any failure to provide a 45-day notice of discharge to residents, or any problem related to a resident being able to access funds the facility was holding for the resident. Ms. Monroe testified that the tag against the administrator for failure to maintain control of the facility was considered a class II deficiency, primarily because of the issues related to resident 5 and the administration of insulin. Inasmuch as most of the allegations in Count II were not demonstrated by clear and convincing evidence, a class II deficiency is unwarranted. The only assertion actually proven is that there were no staffing schedules for the periods identified, which would more appropriately be considered a class III. This single deficiency does not show a lack of control by the administrator. Count III Count III of the First AC alleges that Cristal Palace failed to conduct appropriate Level 2 background screening and to maintain copies of the screening results in staff personnel files. Section 408.809 requires a Level 2 background screening for the administrator; any financial officer; person with a controlling interest; and any person seeking employment with a facility that may be required to provide personal care or services directly to clients or may have access to client funds, personal property, or living areas. Background screening must be conducted every five years, and the specifics regarding the process to be followed, and the offenses which screening will identify, are extensive. In addition to the background screening for employees for those who have not been screened within the last five years, if an employee has worked at another licensed facility and has undergone background screening at the other facility, he or she must provide an affidavit that there has not been a break in employment of more than 90 days, and he or she has not committed any of the offenses that would disqualify him or her from employment. During the August 25, 2015, survey, surveyors identified four employees for which copies of background screening results were not located in the staff member’s paper personnel file. Both section 408.809 and rule 58A-5.024 allow for records to be maintained in an electronic format, as long as personnel are readily available to access the data, and the facility produces the requested information upon request. The four staff members are identified as staff members “C,” “E,” “F,” and “H.” Staff member C (Sammy Cimanes) did not have a paper copy in his file, but the website where background screening is recorded showed that he was eligible to work as of May 11, 2015. Ms. Monroe testified that she would have noted on her laptop that he was eligible on the date of the survey (and her notes so reflect), but she could not specifically recall doing so. Staff member E, Flavia DiSusa, is identified by the surveyor as a chef. Ms. Monroe’s notes indicate that an affidavit of eligibility was in his file, but the facility was not cited for not having the affidavit. It was cited for the failure to have the actual background screening in his file. The background screening documents for Flavia DiSusa indicate that DiSusa is a female, not a male as Ms. Monroe described. In any event, she was not eligible until September 8, 2015, after the August 25, 2015, survey. The deficiency was corrected within 30 days. Staff member F, Kathleen Hall, is a CNA whose file contained an affidavit regarding eligibility dated July 21, 2015, but no background screening. AHCA’s background screening website indicates that Cristal Palace submitted her employment screening request on August 20, 2015, which was before the survey report was filed, but after the surveyor requested the records. This deficiency was also corrected within 30 days of the survey. No realistic findings can be made with respect to staff member H. At hearing, Ms. Monroe indicated that she spoke to staff member H in the hall, and the individual identified herself as a housekeeper. Ms. Monroe recounted a conversation she had, which is clearly hearsay. There is no last name for staff member H and no file for her, and the person with whom Ms. Monroe dealt during this survey visit had never met her. While Ms. Monroe testified that the person told her she was a housekeeper, Ms. Monroe provided no identifying information to confirm that information, such as what she was doing or wearing that would have indicated that she was indeed working for the facility. There is simply not enough information about this person to make a finding that she was actually an employee of the facility, much less to make findings regarding the status of any background screening. In terms of a deficiency for failing to conduct background screening, the number of employees that are not properly screened is not the issue. A deficiency would still exist. Here, there were two individuals for whom the background screening was not completed at the time of the survey, and both were corrected within 30 days. This violation is an unclassified violation. Count IV Count IV seeks to assess a survey fee pursuant to the provisions of section 429.19(7), to cover the cost of conducting an initial complaint investigation that results in a finding of a violation that was the subject of a complaint, or monitoring visits conducted under section 429.28(3). The problem presented in this case is that Agency witnesses testified that while investigating a complaint, they could and would cite any deficiencies that they discovered while at the facility (and rightfully so). While each surveyor specified whether she was at the survey for a complaint survey or a monitoring survey, none of them identified the specific complaints that led them to survey the facility. Without knowing the subject of the complaint, it cannot be found that a violation was found that was the subject of the unidentified complaint. Count V Count V alleges a deficiency, based upon the failure to obtain or maintain a physician’s order for a therapeutic diet that reflects the dietary limitations prescribed. The allegations are related to a resident identified as resident 4 in Agency Exhibit 3. Ms. Monroe, the surveyor responsible for this tag, never identifies the resident in any fashion, other than to say the resident was concerned about her diet. While the First AC asserts facts related to the resident’s 1823, dated August 26, 2015, and an order documenting a calorie controlled diet, neither document was offered into evidence by the Agency. At hearing, Ms. Monroe was asked whether she saw an order for the resident that specified a number of calories, and she stated that she had seen an order for this resident that specified 2,000 calories. She cited the facility because she did not believe that it provided the diet for the resident and did not have a diet that met the 2,000-calorie diabetic diet. She did not know whether this resident was on a list in the kitchen of residents needing a diabetic diet and did not remember if she asked for such a list. The Agency classified this deficiency as a class III. The evidence presented is not sufficient to support the allegations. Count VI Paragraphs 60 through 63 (Count IV) of the First AC are identical to paragraphs 82 through 85 (Count VI). Count IV is addressed in Findings of Fact 40 and 41. No further findings regarding these allegations are necessary. Count VII Count VII alleges improprieties regarding the procedure for assistance with self-administration of medications occurring during the December 17, 2015, survey. Surveyor Vilma Pellot testified that she observed an unidentified staff member perform a “med-pass” with the patient identified in the survey as resident 9. The purported violation is that the staff member did not read the label of the medication: she simply told the resident what medications she was giving the resident. Ms. Pellot was asked at hearing whether a staff member had to read the entire label to a resident, including the pharmacy name, number of refills, refill date, dosage, etc. She testified that the drug name, frequency, and dosage are required. The staff member told the resident the medicines she was receiving, but did not recite the dosage and frequency for each. A follow-up visit to the facility related to this survey occurred May 24, 2016. Ms. Pellot observed a second med-pass, and similar to the med-pass in December, the staff member sanitized her hands, reviewed the MOR and retrieved the resident’s medications, placed the medications in a small cup and gave them to the resident, identifying the medications by name. Resident 3 in this case asked for Lorazapam, which was an “as needed/as requested” medicine, and the staff member went through the same procedure, retrieving the Lorazapam and placing it in a small cup, taking the medication to the resident and verbally identifying the medication to the resident before signing the MOR. The staff member told the resident the name of each drug she received, but did not recite the dosage and frequency. Neither the statute nor the rule uses the phrase, “name, dosage, and frequency,” or anything along those lines. Count VIII Count VIII deals with problems found with respect to resident records during a complaint survey conducted December 17, 2015. The First AC identifies a resident as resident 4, and alleges that the facility failed to maintain an MOR for this resident for October 2015 and that this resident needed assistance with medication (thus necessitating the use of the MOR). When asked about this issue with respect to the December 2015 survey, the surveyor did not identify a specific patient, by name, number, initials, or otherwise, but simply read from the survey document that the October 2015 MOR was not available.7/ The Agency did not introduce into evidence the 1823 referenced in the First AC to establish that the resident actually required assistance with her medications, or any other orders by the health care provider. The Agency conducted a follow-up visit on May 25, 2016. Like many of the follow-up visits in this case, the follow-up visit for the December 17, 2015, survey, was six months after the initial survey, as opposed to 30 days. At that follow-up visit, the Agency alleges that resident records for two of the nine records reviewed were not sufficient. With respect to resident 1, the Agency alleged that the informed consent regarding assistance with medications from unlicensed staff, dated February 18, 2016, did not indicate whether or not the unlicensed staff, who provided assistance, would be supervised by licensed staff; that the 1823 form dated April 26, 2016, did not contain the name of the health care provider, the provider’s medical license number, or the address of the provider conducting the examination; and that this 1823 did not indicate if the resident needed assistance with medications. The Agency did not seek to admit the informed consent form or the 1823 form about which it complained. Moreover, rule 58A-5.024(3)(g) provides that the written informed consent form must be maintained if such consent is not included in the resident’s contract. The Agency presented no evidence regarding the resident’s contract and whether the appropriate consent was contained therein. The Agency contends that the 1823 dated November 15, 2015, for resident 3 did not indicate whether resident 3 had any allergies. Ms. Pellot, the surveyor who cited this deficiency, could not remember the resident’s name, and the Agency did not submit a copy of the 1823 at hearing. When shown an 1823 dated November 15, 2015, for resident M.A. (Cristal Palace Ex. 38), she could not say whether this was the document she saw. Exhibit 38 contains the abbreviation “NKDA,” which Ms. Pellot acknowledged is understood to mean no known allergies. While the First AC, paragraph 120, indicates that when the assistant administrator was interviewed, she stated that the purportedly missing items were overlooked, Ms. Pellot did not testify regarding this conversation. Without knowing the context in which the statement attributed to the assistant administrator was supposedly made, it is not sufficiently compelling to support the conclusion that a deficiency existed, especially where, as here, the documents were not supplied for review, and the exhibit supplied by Cristal Palace appears to contradict the surveyor’s findings with respect to resident 3. The Agency did not demonstrate a class III deficiency with respect to the records of residents 1 and 3. Moreover, the Agency did not demonstrate an uncorrected Class III deficiency with respect to these records. Count IX Count IX alleges violations with respect to documentation related to staff in-service training identified during the October 21, 2015, survey. Rule 58A-5.0191 identifies the in-service training requirements for those working in ALFs. There are different requirements for different types of staff. In other words, the training required of direct care staff is different than what is required for those who do not provide direct care, and all staff must receive in-service training regarding the facility’s resident elopement response policies and procedures within 30 days of employment. During the October 21, 2015, survey, surveyor Vanessia Bulger reviewed staff files for eight staff members, and found that the documentation regarding in-service training for five of the staff was insufficient. The staff members were identified as A, B, C, D, and F. Staff member A is Kimberly Travis. According to the chart attached to the October 21, 2015, survey, her date of hire is September 1, 2015. The survey indicates, and Ms. Bulger testified, that Ms. Travis’ personnel file did not contain documentation that she had received training for reporting major and adverse incidents; the facility’s emergency procedures; the facility’s elopement response policies; and safe food handling practices. The First AC does not allege whether Ms. Travis is a direct caregiver, which impacts what training is required for her. However, no one disputed that she was a CNA. In its Proposed Recommended Order, Cristal Palace acknowledged that Ms. Travis did not receive the missing training until December 2015; so clearly, documentation was not available during the October 21, 2015, survey. There was no testimony presented regarding staff member B, who is identified in the survey matrix as Nicola Merriell. The matrix indicates “did not review,” and there is no information regarding her training documentation included in the employee matrix attached to the survey document. Staff member C, Evertina Bethelmy, was hired on September 9, 2015. The First AC alleges that her personnel file lacked documentation for reporting resident abuse and neglect; resident rights in an ALF; the facility’s elopement response policies and procedures; reporting major and adverse incidents; the facility’s emergency procedures; and safe food-handling practices. Ms. Monroe testified to this effect, and there was no indication that this training was actually received, but not documented prior to the surveyor’s visit. Staff member D is identified in the survey matrix as Isabel Ong, a nurse. No testimony was presented regarding the documentation for her training. Nonetheless, it is sufficient that the files for two staff members did not contain the appropriate documentation related to training requirements. This failure is appropriately considered a class III deficiency because of the potential for harm to residents, based upon the failure to be appropriately trained to care for residents. On March 1, 2016, the Agency returned to the facility and again sampled employee files (although not necessarily the same ones) for compliance with in-service training. The First AC alleges that four staff members had no documentation related to required training. While the First AC alleges what documentation was missing, as well as the personnel for whom it was missing, testimony at hearing does not address that information. The matrix attached to the March 1, 2016, survey identifies omissions for three employees as opposed to four. The only testimony the undersigned could locate on this issue and the only citation provided by the Agency in its Proposed Recommended Order is the single sentence, “when I reviewed the personnel records there was no evidence of certificates of training.” This testimony, standing alone, is insufficient. Ms. Pellot testified, consistent with the testimony of her colleagues, that she does not review any document that is sent in by the facility in the 30 days after a survey. She simply looks at what is there when she conducts the revisit. Cristal Palace presented Agency reports that show inspection details, including tags found, and when and if a deficiency is cleared. With respect to in–service staff training, the report indicates that the deficiency cited on October 21, 2015, and reviewed again on March 1, 2016, was not cleared until July 17, 2017, well beyond the time period contemplated by statute. It is unclear from the record whether the information was submitted on an untimely basis, or whether the Agency simply did not review the information submitted until a much later date. The evidence supports finding a class III deficiency, but does not support a finding of an uncorrected deficiency. Count X Count X alleges that on May 25, 2016, the Agency completed a follow-up survey to the March 1, 2016, survey described above. At this time, the Agency alleges that there still existed an issue with respect to documentation of staff training, and that three of four staff members whose files were reviewed did not have some of the required documentation. Surveyor Linda Gulian-Andrews testified with particularity regarding the missing documentation, and, as with the tag discussed in Count IX, the Agency report for this tag shows that the deficiency was cleared July 17, 2017, well after 30 days. Mr. Dorra, Cristal Palace’s owner and former administrator, testified that Cristal Palace had instituted a monthly audit of employee files to ensure that all documentation was accounted for. While it may have been Mr. Dorra’s direction that this audit be completed each month, it does not appear that his administrative staff followed through with the directive consistently. This deficient practice constitutes a class III deficiency. It is an uncorrected deficiency at the time found, but has been cleared before the institution of this proceeding. Count XI Rule 58A-5.019 requires that staff must provide a statement from a health provider documenting that the staff has no signs or symptoms of communicable disease. The statement must be made based upon an examination performed no earlier than six months prior to submission of the statement. Employees must also submit documentation of a negative tuberculosis (TB) examination on an annual basis. During the October 21, 2015, survey, the Agency reviewed personnel files and found that the file for staff member B did not contain the appropriate documentation. Specifically, the First AC alleges that the staff member was a direct caregiver hired on September 19, 2015, and that the file for that person reflected a TB test result dated April 8, 2014, more than a year prior to her employment at the facility. The First AC also alleges that this staff member did not have a statement that she was free from communicable disease. The employment matrix attached to the October 21, 2015, survey, does not have a staff member identified as staff member B. The staff member listed in the column between staff member A and staff member C (but not identified as staff member B) is Ticola Merriell. Her date of hire is listed as September 21, 2015, as opposed to September 19, 2015. The matrix listed Ms. Merriell as a dietary employee and notes, “did not review.” The survey document refers to a conversation with the administrator, indicating that the staff member (referred to as male) had not yet brought in a doctor’s statement. This makes no sense when coupled with the matrix attached to the survey. The Agency did not demonstrate this deficiency as charged in the First AC by clear and convincing evidence. The Agency returned for a revisit survey on March 1, 2016. At that time, it again cited the facility for failing to have a negative TB test and statement regarding communicable diseases, this time for staff member D. Staff member D is Stephanie Flores. Her file contains two TB test results, one dated February 17, 2014, and the second one dated April 7, 2016. Neither test is in the window of time required by rule, in that the first one is well over six months prior to the date of hire, and the second one is more than 30 days from the date of hire. The survey document refers to a conversation with the administrator, in which he indicates that the staff member was going to be terminated that day. Obviously, that did not happen, or Cristal Palace would not have a TB test for that staff member dated more than a month later. While the staff member may be clear of TB presently and presumably able to work, this deficiency as a practical matter cannot be cleared if the employee is unable to obtain documentation that she submitted to a TB test during the appropriate seven-month window. As a practical matter, the facility should have terminated this employee when the TB test was not provided within the first 30 days. The Agency appropriately classified this as a class III deficiency. Count XII Count XII seeks to impose a survey fee to cover the cost of monitoring visits to verify the correction of violations. Based on the findings with respect to Counts X and XI, Cristal Palace is subject to a survey fee of $500. Count XIII Count XIII alleges a failure to complete and timely submit an adverse incident report regarding the involvement of law enforcement cited during the Agency’s June 30, 2016, complaint survey. Adverse incidents are defined by section 429.23(2), and included within its definition is “an event that is reported to law enforcement or its personnel for investigation.” There are two types of reports that must be submitted to the Agency when there is an adverse incident: the first (one-day) must be filed within 24 hours and relates what happened. The second (15-day) must be filed within 15 days and details the results of any investigation that is undertaken, and any corrective actions the facility has taken to prevent a recurrence. Resident S.G. is a resident who keeps her medication locked in her room. On June 24, 2016, she signed for her prescription of Oxycodone. The prescription contained and S.G. received 120 pills. However, she came back to the med tech, who had given her the medication, and claimed that she had received only 60 of the 120 pills. Cristal Palace called the police and Mr. Dorra escorted the police to S.G.’s room. With her permission, the locked cabinet where she kept her medications was opened, and all 120 pills were there. The police did not file a police report. Likewise, Cristal Palace did not file an incident report, based on its belief that one was not necessary, given that the police did not actually investigate and no police report was filed. However, the need to file an adverse incident report is triggered not by the filing of a police report, but by calling law enforcement in the first place. The Agency correctly determined that the failure to file an adverse incident report is an unclassified violation, for which a fine of up to $500 may be imposed. Mr. Dorra’s interpretation of the requirement to file an adverse incident report is a reasonable, if incorrect, interpretation. The fine should not be the full amount; rather, a fine of $250 is warranted. Count XIV Count XIV also deals with background screening, cited as part of a survey on October 21, 2015. It alleges that a surveyor, Ms. Pellot, interviewed a housekeeper, whose name she could not remember. The First AC identifies her as staff member F. According to Ms. Pellot’s testimony, this person identified herself as a housekeeper who just could not resist the urge to assist residents, even though she was not hired to do so. She had not been sent for fingerprinting, but claimed that the administrator told her she was in the registry, which she did not understand. There is no employment file for this person. At hearing, it appeared that this housekeeper was the same person identified in Count III, for which there was no file as well. However, the person with whom Ms. Pellot spoke claimed that she was hired in September 2015, after the previous survey. The matrix attached to the survey document does not identify a staff member F or a housekeeper. Ms. Pellot acknowledged that staff member F was not included in the matrix, but claimed that all of her information was included in Ms. Pellot’s notes, which she did not have at hearing. A motion in limine filed by Cristal Palace specifically questioned whether Cristal Palace had been provided with all of the information related to the two people identified as housekeepers, and the Agency’s response to the motion did not address the issue. Moreover, neither Ms. Monroe’s testimony (regarding the earlier survey) nor Ms. Pellot’s testimony with respect to staff member F provided any information about these supposed housekeepers to explain why the surveyors believed them to be staff as opposed to a confused resident. There is no testimony that she was wearing a uniform associated with Cristal Palace or was performing housekeeping duties during the interview. Without a name for staff member F, it is not clear that the comments attributed to the administrator would even be about the same person. Moreover, it seems unlikely that a person could be an employee without any type of employment file, given that at least some of the information in an employment file would be necessary to process payroll. At bottom, there are just too many questions about staff member F to determine by clear and convincing evidence that she was even an employee at the facility, much less that she was an employee whose background screening was not completed. Count XV Count XV deals with a criminal background check issue observed during the October 1, 2015, survey. Section 408.809(2) provides that where a staff member has submitted to a Level 2 screening at prior employment within the last five years, the prior screening may be accepted, provided that the person submits an attestation that the screening requirements at the prior employment are equivalent to those specified in sections 408.809(2) and 435.04, Florida Statutes, and that the person subject to the screening has not had a break in service from a position requiring Level 2 screening for more than 90 days. Ms. Bulger testified that during the October 21, 2015, survey, one of the employees whose file she reviewed had no affidavit, but she could not recall the employee’s name. After reviewing the survey document, Ms. Bulger testified that Evertina Bethelmy was hired on September 8, 2015, and had Level 2 screening results dated February 15, 2015, which means that her screening was six months and approximately three weeks before her hire date. Her records also show that she was employed as a home health aide as of August 7, 2015, but, according to Ms. Bulger, there was no attestation in the file. Cristal Palace produced a signed attestation from Ms. Bethelmy dated September 8, 2015, her hire date. Ms. Bulger acknowledged that when she pulled up Ms. Bethelmy’s data on the computer, she was eligible. She did not review the documents Cristal Palace provided in the days immediately following the survey. As noted at hearing, the attestation had to be in the file at the time of the survey. Given Ms. Bulger’s inability to remember the name of the employee at issue, it is doubtful that her memory regarding what was in the file is nevertheless clear. This unclassified alleged violation was cleared by the Agency on March 1, 2016, and is not substantiated. Count XVI The Agency seeks to impose a survey fee related to Counts X and XI. This count is identical to Count XII, which also seeks to impose a survey fee for Counts X and XI. Count XVII Count XVII alleges a violation based on the facility’s alleged failure to comply with the requirement to register and maintain its employees in the Care Provider Background Screening Clearinghouse (clearinghouse). Section 435.12 requires that the Agency, in consultation with the Florida Department of Law Enforcement, create a secure web-based system referred to as the clearinghouse, which shall allow the results of criminal history checks provided to the specified agencies for screening to be shared among those agencies when a person has applied to volunteer, be employed, licensed, or enter into to a contract that requires screening. Section 435.12(2)(b) requires that employers of persons subject to screening must register with the clearinghouse and maintain the employment status of all employees within the clearinghouse. Initial employment and any change in status must be reported to the clearinghouse within ten days. The First AC alleges that based upon a record review conducted during a complaint survey on June 8, 2016, Cristal Palace had failed to maintain its employees in the clearinghouse. Specifically, while the facility had 25 employees at that time, the Agency alleges that only seven names were contained in the clearinghouse for the facility, and that only three of those were for current employees. The Agency did not submit a copy of the clearinghouse roster into evidence. It also submitted nothing to identify who the employees, identified at paragraph 224 as employees A through G and L through Y, are. While the survey indicates that there were discussions with an assistant administrator regarding the roster, that administrator was not identified, and the surveyor could not affirmatively identify which staff person she spoke to. The Agency identified the alleged violation as an unclassified violation. However, the Agency did not demonstrate a violation by clear and convincing evidence. Count XVIII Count XVIII of the First AC alleges issues related to background screening discovered during the complaint survey conducted on June 8, 2018. The Agency alleges that staff member B’s file did not contain a Level 2 criminal history background screening or attestation, and the staff member was not located in the Agency’s criminal background screening database. The Agency also alleged that with respect to staff member C, the criminal history eligibility record in the employee’s file read “new screening required,” and the same information was noted in the Agency’s background screening database. The Agency did not introduce any matrix to the survey document to identify these staff members; did not introduce any portion of the staff members’ personnel files; and did not provide any testimony to identify the staff members whose files it found to be deficient. It also did not provide any evidence from the database to support the allegations that one employee was not in the database, and that the database noted that new screening was required for the other employee. The violation is not supported by clear and convincing evidence. The Agency listed this count as supporting an unclassified violation. Inasmuch as the allegations are not supported by clear and convincing evidence, there is no basis for an unclassified violation. Count XIX Count XIX deals with Cristal Palace’s financial stability to operate. The First AC alleges that based upon review of financial account reviews and interviews as part of its June 2, 2016, survey, Cristal Palace did not demonstrate financial stability to continue the provision of care and services to residents. The First AC alleges that it interviewed several staff members (though unnamed or identified in any way), who stated that paychecks were being denied for insufficient funds; the food vendor refused to deliver food supplies until the account was paid; staff were buying food and supplies from their own funds; and there was concern about staff not coming to work because of compensation issues. Several statements were attributed to staff members “K,” “L,” “J,” “F,” “E,” and “G.” These staff members were not identified and did not testify at hearing. No food vendor testified at hearing. The First AC makes several allegations regarding checks that were written on particular days, and that alleges there were insufficient funds available to cover those checks, as well as allegations regarding checks that bounced. However, no bank statements, registers, checks, or other documents were admitted into evidence. Mr. Dorra, Cristal Palace’s owner and former administrator, testified about the financial condition of the facility. He acknowledged that early on, there were some problems with the accuracy of paychecks, because the employees did not use the fingerprint identification equipment properly to check in and out, creating issues in terms of the actual hours worked. Mr. Dorra bought a new, simpler system, and addressed the paycheck discrepancies one by one. He testified that there was an instance where a food vendor delivery person was not paid the day of the delivery, and he contacted the vendor the following day to arrange payment. An employee who testified confirmed that there was a problem with her paycheck early on, but that the problem had been addressed, and there were no problems after that. At the Agency’s request, Cristal Palace submitted to the Agency completed proof of financial ability to operate forms, dated July 4, 2016. This cited deficiency was cleared by the Agency on July 10, 2017. The Agency did not prove the cited deficiency for financial inability to operate by clear and convincing evidence. Count XX Count XX is a “catch-all” provision, asserting that the information that Cristal Palace provided regarding its financial ability to operate failed to demonstrate that it had the financial ability to operate as defined by law. Count XX also alleges that Cristal Palace has been cited with five violations related to the failure to comply with background screening standards and has been cited with a total of 15 violations of law subject to administrative monetary sanctions over the period August 26, 2015, through June 8, 2016. The Agency alleges that these 15 violations constitute a pattern of deficient practice. While the Agency contends that Cristal Palace failed to demonstrate that it has the financial ability to operate, the Agency did not introduce into evidence any of the financial information it received, and presented no testimony explaining that information. There was no expert testimony to address what was required for an ALF to operate or how the information submitted fell short. Of the 20 counts alleged, the Agency proved a small part of Count II, but did not prove that it was a class II; and proved violations in Counts III, IX, X, and XI, related to documentation for background screening and/or in-service training and freedom from infectious diseases. It also proved the violation alleged in Count XIII, related to the failure to file an adverse incident report, and Counts XII results in the imposition of survey fees. Several of these counts, while proven, were also cleared by the Agency. The Agency did not prove the allegations in Count I, the vast majority of Count II, Counts IV, V, VI, VII, VIII, XIV, XV, XVII, XVIII, XIX, or XX. In short, the Agency proved six violations, all of which are documentation issues, as opposed to issues addressing care and treatment. While clearly there were problems in certain areas, the evidence did not demonstrate an overall pattern of deficient practice. Second AC The Second AC comprises six counts. Count I alleges that during a complaint survey conducted October 26, 2015, contrary to rule 58A-5.0185(7)(f), the facility failed to make every reasonable effort to ensure that prescriptions for residents, who receive assistance with self-administration of medication or medication administration, are filled or refilled in a timely manner. The rule does not contain a definition for what constitutes a timely manner. Count I This allegation concerns the medication prescribed for resident 2. The Second AC alleges that from Friday to Monday, October 14 through 17, 2017,8/ resident 2 did not receive prescribed pain medication. Allegations regarding the resident’s 1823 form, the nursing progress notes, and the resident’s MOR are also included, as well as an interview allegedly conducted with an unnamed unlicensed employee of the facility. While the Second AC contains allegations regarding the 1823 form, the nursing progress notes, and the resident’s MOR, the Agency did not seek to admit any of these documents into evidence. The facility, on the other hand, submitted documents indicating that they had contacted both the physician and the pharmacy beginning October 12, 2017, before the medication ran out, and continued to do so until the medication was refilled. No deficiency has been proven with respect to this count. Count II This count alleges that the facility failed to file an adverse incident report with respect to a day resident who left the facility and for whom the facility initiated its elopement policy. The Second AC alleges that this deficiency is reflected in a survey dated October 25, 2015, but references an adverse incident report dated August 5, 2016, some nine months later. R.G. was a resident who came to Cristal Palace during the day while his daughter worked. R.G. had been diagnosed with Alzheimer’s disease, but there was no testimony about the stage of his illness, and Shelia Mobley, the only person testifying who had personal knowledge regarding this resident, did not believe him to be an elopement risk. According to Ms. Mobley, the Alzheimer’s diagnosis alone does not mean that a resident is an elopement risk, and she did not believe this gentleman to be one. None of the surveyors were present when the incident occurred, and R.G.’s daughter did not testify. However, Ms. Mobley is a consultant working with Cristal Palace, and was at the facility when R.G.’s daughter came to pick him up, and he could not be located. The more persuasive testimony indicated that he was gone from the facility for somewhere between 15 to 45 minutes. Cristal Palace staff immediately began its elopement policy protocol to locate the resident, and law enforcement was called. Ms. Mobley remembered that he had a particular fondness for cars, and drove to the tire store located about a quarter mile away and within sight of the facility. The resident was there talking to the mechanics, and when he saw Ms. Mobley, he told her he was glad to see her and was ready to go home. She testified credibly that the resident was calm and apologetic when they returned to the facility, and was sorry to have caused such a commotion. The surveyor’s notes regarding the incident also reflected that R.G. was safe and unharmed. R.G. wore an ankle bracelet to assist in locating him should the need arise, but Cristal Palace did not resort to using the tracking system connected to the ankle bracelet because he was located so quickly. The facility’s elopement policy included having pictures of residents who are elopement risks available to staff, including the receptionist, to aid in locating them. After this incident, the facility altered the front doors to include a magnetic lock controlled at the front desk to better control exiting the facility. The back of the facility is fenced, so the only way to exit the premises is through the front. AHCA cited Cristal Palace for not timely submitting a 15-day adverse incident report. While the Agency chose not to submit a copy of either report into evidence, Cristal Palace submitted a copy of the one-day report filed with AHCA on August 5, 2016, and the 15-day report submitted on January 30, 2017. Mr. Dorra admitted at hearing that the 15-day report was not timely filed. He did not believe the incident to require an adverse incident report, but had one filed because the surveyor asked him to, and because the Agency kept citing the facility for failure to file the report. It is unclear who called law enforcement in this incident, but staff at Cristal Palace were aware that law enforcement had been called, thus placing the incident in the category where both one-day and 15-day reports are required. Not only are adverse incident reports required when law enforcement is called, but they are also required when there has been a possible elopement. While a 15-day report was filed, it was not done so on a timely basis. This incident is an unclassified deficiency. Count III Count III seeks to impose a survey fee with respect to Count I. Given that no deficiency was demonstrated with respect to Count I, there is no basis for imposing the survey fee requested in Count III. Count IV Count IV alleges background screening violations cited during an October 18, 2016, survey. The Second AC alleged that staff member B was hired on September 22, 2016, and the criminal history background screening of record indicated he was eligible March 12, 2012. The Second AC also referenced an undated employment application reflecting that his last employment at a licensed facility was over one year prior to his date of hire. Staff member B is identified in the matrix attached to the October 18, 2016, survey as Michael Taylor. The Agency did not introduce into evidence any employment application or documents showing when he was eligible to work in terms of his background screening. Ms. Pellot testified at hearing, after reviewing the survey document, that there was a background screening violation for “one staff that should have – that was subject to a background screening did not have a background screening done.” She did not specify who the staff member was or when he or she had been hired, and provided no identifying information regarding the staff member or the contents of his or her file. Assuming that the staff member to whom she referred is Mr. Taylor, Cristal Palace supplied documentation showing that Mr. Taylor had been screened in March 2012, and also had an attestation form signed on September 20, 2016. Any reliance on the undated employment application is misplaced, as it was not offered into evidence. Mr. Taylor was re-screened on November 3, 2016, and remains eligible. The Agency did not establish that Mr. Taylor had a break in service or that there was an impropriety regarding his documentation by clear and convincing evidence. Count V Count V of the Second AC alleges that during the October 18, 2016, survey, there were two staff members, B and D, who were not included on the clearinghouse for Cristal Palace within ten days of hire. The only testimony elicited at hearing regarding this allegation was the statement by Ms. Pellot that “review of the background screening roster revealed that the two staff what [sic] we identified were not listed,” and that she had verified that the unnamed staff members were employed for ten days. The matrix attached to the October 18, 2016, survey identifies staff members B and D as Michael Taylor and Latasha Spivey, respectively. Other than the matrix itself, no documentation related to these employees was offered into evidence by the Agency. The clearinghouse roster was not admitted into evidence and cannot be examined to determine if the staff members’ names were included. The Agency did not prove the allegations in Count V by clear and convincing evidence. Count VI Finally, Count VI seeks revocation of Cristal Palace’s license based on the violation of background screening requirements in Counts IV and V. Inasmuch as the Agency did not demonstrate a violation of either count as alleged, there is no basis for discipline under Count VI. Second Amended NOI On February 28, 2017, Cristal Palace filed its application for renewal of its license. If there was a survey conducted in connection to the renewal application, as specified in section 408.811(1)(b), no evidence regarding such a survey was introduced into evidence by the Agency. On June 5, 2017, the Agency served Cristal Palace with an NOI of its renewal application. The NOI alleged that the Agency had conducted numerous surveys and that Cristal Palace continuously failed to comply with the survey requirements toward correcting cited deficiencies. It further alleged that as of the time of the NOI, there remained twelve uncorrected deficiencies from the surveys conducted prior to the application for renewal of Cristal Palace’s license. Cristal Palace submitted a copy of the Agency’s provider inspection details, printed January 23, 2018. At that time, the Agency’s report indicated eight tags that did not have a correction date. As discussed below, not all of the eight tags remaining open support a finding of a deficiency. The NOI was amended twice, so that the current document is the Second Amended NOI. There is a great deal of overlap in allegations between the Second Amended NOI and the Administrative Complaints, and those alleged deficiencies that have been addressed previously will not be revisited. The Agency has noted those allegations that it believes were addressed in the First and Second ACs. However, because of the sparsity of the allegations regarding each tag, coupled with the vague generality of the testimony provided, it appears that there are other allegations that duplicate the charges in the First and Second ACs. Those allegations will be noted, but not addressed further. June 2, 2016 The Second Amended NOI cites a tag related to the June 2, 2016, survey, regarding the facility’s financial ability to operate. The Agency notes that this allegation was alleged in the First AC at Counts XIX and XX, and this allegation was not substantiated at hearing. June 8, 2016 The Second Amended NOI identifies ten class III violations and two unclassified violations generated from the June 8, 2016, complaint survey. The Agency tagged the facility for failing to follow a resident’s 1823 form, which included a physician’s order for medication administration. The resident is not further identified in the Second Amended NOI, nor is the nature of the medication administration failure. The only evidence presented was testimony that the 1823 for this resident stated that he needed his medications to be administered, but that the surveyor, Ms. Pellot, had observed an unlicensed staff member providing assistance instead of a licensed nurse administering the medications. The 1823 was not admitted into evidence. Moreover, while the survey report identifies the resident as female, Ms. Pellot referred to the resident as male. The evidence regarding this deficiency was not clear and convincing, and therefore not substantiated. The second class III identified addresses resident care/supervision and alleges that the facility failed to notify residents’ health care providers of unavailability of medications and that there was no evidence that the facility made efforts to ensure medications were timely filled or refilled. While there was testimony about medications given or not given to four residents, based on the surveyor’s review of documents, none of the documentation upon which the surveyor relied, such as MORs, 1823s, or other facility records, was admitted into evidence. Without more, this tag is not substantiated. The third class III deficiency identified alleges the failure to post an activities calendar. Similar to testimony regarding a prior survey, the surveyor did not indicate where she looked for a posting of the activities calendar, and did not say that she requested one and it was not provided to her. Ms. Mobley, who was a consultant regularly on the premises during this time, testified credibly that the facility has activities that are scheduled on a calendar, and there are many activities for the residents. This tag is likewise not substantiated. The Agency also cited the facility for failing to inform residents of the weekly showering schedule, identifying this deficiency as a class III. This tag was based on a conversation one of the surveyors had with two new residents, who allegedly reported that they had not been offered showers. Conversations with residents who did not testify at hearing are hearsay. Ms. Bulger acknowledged that there is no rule even requiring a shower schedule. The facility presented persuasive evidence that new residents are told about the shower schedule and are assured that showers are available whether on a schedule or not, but that some new residents take a while to settle into a routine. While the Agency asserted that these two residents required assistance with showering, it presented no evidence, such as the residents’ 1823s, to substantiate this allegation. Similarly, the surveyor testified that she received the shower schedule, and the two residents were not on it. Yet neither the shower schedule nor the residents’ identity was presented for examination to substantiate the claim. The fifth class III deficiency noted for the June 8, 2016, survey, is an administration tag related to medication. The Second Amended NOI alleged that the facility failed to provide medication administration to resident 4 by a licensed staff member, i.e., blood pressure readings to determine when medications were to be given. The survey report for June 8, 2016, indicates that resident 4 had a physician’s order for Clonidine to be taken twice a day as needed, when the systolic blood pressure was greater than or equal to 180 mmHg, and that the April and May MORs contained only one blood pressure reading. The Agency did not introduce the doctor’s order or the MORs into evidence. Ms. Pellot testified that she spoke to a med tech who advised that blood pressure readings were kept in a separate book. While Ms. Pellot stated that she reviewed the contents of the book, no excerpts related to the blood pressure readings for this resident were offered into evidence. Ms. Pellot did not testify that she saw an unlicensed person taking blood pressure readings. On the other hand, Coralie Prince, a nurse employed by Cristal Palace, testified that this resident was fixated on her blood pressure readings, which were generally good, and that her blood pressure readings were recorded. She also testified that CNAs and med techs did not take blood pressures when she was around, and she was not aware of a CNA ever making the decision that a resident needed medication based on blood pressure readings. She gave an example of an incident when she was running late to work and the resident was waiting for her at the door for a blood pressure reading. When Ms. Prince was not available to take blood pressure readings, perform injections, or other medication administration, she testified that a licensed practical nurse (LPN) was available for this function. Ms. Prince was on-call, and would come in when the LPN was not going to be there. She came in no later than 7:30 a.m., and stayed for a 12-hour shift. Ms. Prince also testified that the facility had an electronic system that kept records of readings. That record was not in evidence. The tag for medication administration has not been substantiated. The sixth class III deficiency for which Cristal Palace was tagged involved medication storage and disposal. Surveyor Lorienda Crawford testified that she walked into a resident’s room and saw three unknown pills on the bathroom vanity. She testified further that if a resident self-administers medications, the facility still has an obligation to make sure all medications were secured. The Agency did not offer the 1823s for these residents into evidence, which would have indicated whether they needed medication administration. Moreover, rule 58A-5.0185(6)(a) provides that residents may keep their medications, in their rooms or apartments, “which must be kept locked when residents are absent.” There are some exceptions to this provision in the rule, but the Agency did not prove any circumstances that would trigger those exceptions, and the testimony of Ms. Crawford was that she went into the room and the residents were present, thereby negating the need for the room to be locked. This deficiency has not been substantiated. The Agency issued a tag 77, citing a class III deficiency for failing “to ensure that resident’s records had documentation to confirm that resident’s healthcare provider and family were notified that resident went to ER and a Rehab Center, no documentation regarding residents’ hospital admissions.” The survey report identifies three residents that allegedly went to either rehabilitation facilities or to the emergency room, but for whom the Agency says the resident files do not include any notation that a family member or the attending physician was notified. Once again, none of the resident records referenced in the survey report were admitted into evidence. Cristal Palace keeps an Incident/Accident Report book where incidents occurring within the facility are noted. Each form includes a place to note whether family members or physicians are notified. Cristal Palace Exhibit 47 contains examples of these forms, and although it is hard to confirm if these are the same patients identified in the survey document, they appear to be. Some of these forms include a date in the narrative summary of what happened, and some do not. None have the space provided for a date completed. In each form provided, there is a notation that a family member was contacted and/or provided a message regarding the hospitalization or other incident. Without the opportunity to examine the records that are alleged to be deficient, this tag cannot be substantiated. The Agency issued a class III for tag 93 (food service/dietary standards). The Second Amended NOI alleges that the “facility failed to provide therapeutic diet, failed to date and plan menus one week in advance, and failed to maintain 6 months menus with substitution noted.” Surveyor Nitnirun Chaokasem testified that Cristal Palace had four-week menus posted all together, with no identification as to which week would be used when, and had no dates on the menus. She did not see six months’ worth of menus, and was told by newly-hired kitchen staff that the staff was unaware of the requirement to keep menus for six months. She also testified that one resident had orders to be served a 2,000-calorie ADA diet, and did not see a menu for that diet. However, she did not ask for the therapeutic diet. Ms. Chaokasem reviewed Cristal Palace’s Exhibit 13, which is five weeks of menus. Each week of menus is labeled week 1, week 2, etc., but she was not told that the numbers correspond to the week of the month. She did not recall seeing the week-5 menu while at the facility, did not review the dietitian certificate, and acknowledged that each menu included a certification from the nutritionist. The Agency did not provide the 1823 for a resident that indicated the need for a therapeutic diet. However, while the menus were numbered sequentially, they are not dated as required, and six months worth of menus was not provided. This deficiency was appropriately cited as a class III. It was, however, cleared by the Agency on January 25, 2017, five months prior to the issuance of the original NOI, and was, therefore, not still outstanding. The Agency cited tag 152 for two issues: 1) that a trash bag full of trash, as well as soiled clothing in a pile on the floor, were found in a resident’s room; and 2) that a resident room where bed bugs had been exterminated had a black and brown substance on the wall and ceiling. Ms. Crawford testified that when she entered the room where the loose medication was on the bathroom vanity, she also observed a 13-gallon trash bag in the room that had not been dumped or emptied, along with some soiled, urine (smelling) clothing in a pile on the floor. She asked the residents when they had laundry day, and they did not know. She testified that the room was not on the housekeeping schedule she received, and she did not receive a laundry schedule. No regulation requiring a laundry schedule or a housekeeping schedule was supplied, nor was the housekeeping schedule submitted into evidence. It is not known when the housekeeping schedule was prepared in comparison to the admission of these two residents, who were new to the facility. Moreover, while there was hearsay from the residents regarding how long the pile of clothing was on the floor, no competent evidence was presented to establish whether it was placed there days or minutes before the surveyor appeared. The facility’s witnesses testified that rooms were cleaned every day. This tag is not substantiated. With respect to the alleged bed bugs, Ms. Bulger read from the survey document that the facility “had pests and mattresses, furnishings in the hallway. And there was dark substances [sic] in the ceiling and there were insects that had – that were still alive.” On cross-examination, she acknowledged that there was no resident in the single room in question, because the facility had moved the resident and was in the process of treating the room. She also did not know if the county health department came out and cleared them. The Agency cleared the deficiency in January 2017. The more persuasive evidence is that the facility had already identified the problem and was taking appropriate steps to address it. In other words, it was actively seeking to provide and maintain a homelike and decent environment by treating the already-identified issue. No deficiency has been substantiated. The final class III tag identified for the June 8, 2016, survey, is the failure to update the admission/discharge log for the facility. Ms. Pellot noted that the admission/discharge log for the day she was there reflected a census of 58 residents, whereas the actual census the day of the survey was 39. The admissions/discharge log was not admitted into evidence.9/ The potential harm identified was that in the event of an emergency, without an accurate admission/discharge log, the facility would be unable to account for all of the residents in the event of an evacuation. However, there was no evidence that resort to the admission/discharge log would be part of any evacuation plan. Ms. Pellot also acknowledged that she did not know whether any planned outing for that day may have affected the census as compared to the admission/discharge log.10/ This deficiency was not substantiated. The first unclassified deficiency identified for the June 8, 2016, survey in the Second Amended NOI was previously addressed in Count XVII of the First AC. As noted in Finding of Fact 104, this deficiency was not substantiated. The final deficiency identified in the June 8, 2016, survey, is noted as being included in the First AC. The allegations in the Second Amended NOI are sparse, but it appears that this allegation is directed at the file for Ms. Bethelmy, addressed in Count XV of the First AC. As noted at Finding of Fact 98, this deficiency was also not substantiated. In sum, of the 12 violations identified with respect to the June 8, 2016, survey, the Agency has proven one violation, that being the failure to appropriately date menus and to provide six months of menus upon request. June 30, 2016 The Second Amended NOI alleged three violations with respect to the survey dated June 30, 2016: two identified as class III deficiencies, and one unclassified deficiency. The first asserted violation is tag 7, addressing admissions criteria, in which the Agency asserts that the facility admitted a resident requiring a 24-hour caregiver when the facility did not have a 24-hour caregiver available. The resident is not identified in the Second Amended NOI. The sole testimony regarding this issue is a statement by Ms. Bulger that “the facility admitted a resident whom, after the 1823 was completed, the healthcare provider noted that he – if he was going to be admitted into an assisted living facility he needed at [sic] 24-hour caregiver.” She testified that the facility does not have staff that could just watch this resident 24 hours, and that, based upon what the health care provider had on the resident health assessment form, the resident was not appropriate for admission. No 1823 for this resident was admitted into evidence. Without being able to examine the 1823, and without knowing whether the Ms. Bulger’s statement regarding staffing was a general conclusion or based on an examination of the facility’s actual staffing levels, this deficiency is not supported. There was evidence presented at hearing regarding provision of services by hospice. However, without more in the Second Amended NOI to identify the resident, there is no competent, substantial evidence to know whether the resident receiving hospice services is even the resident about whom the tag was written. Moreover, no tag related to hospice care was alleged. The second class III tag identified addresses a resident that the Agency alleged had been identified as an elopement risk and for whom the facility did not ensure that the resident maintained identification on his person. Although not entirely clear, it appears that this person is the same person identified in the prior tag. According to Ms. Bulger, the 1823 for this resident identified him as an elopement risk because he wanders. She observed him sitting in the activities room at the facility, and at that time, observed that he did not have identification on him. Ms. Bulger noted in the survey report that the resident had a call button on a lanyard around his neck, but could not recall that at hearing. She also did not specify how she knew he had no identification and acknowledged that she did not attach a copy of the 1823 to her survey. The Agency likewise did not introduce the 1823 into evidence. There is simply not enough evidence presented at hearing to identify this resident as an elopement risk. Nor is there any evidence about what information might be garnered from the on-call button he wore, or what efforts, if any, the Agency made to find that out. Without more, this deficiency is not substantiated. The final deficiency noted for June 30, 2016, involved the same unclassified allegation addressed in the First AC at Count XIII. As noted in Finding of Fact 90, this deficiency was substantiated, though Cristal Palace’s explanation in mitigation of the incident was reasonable. October 18, 2016 On October 18, 2016, the Agency conducted a monitoring visit for ECC services. At that time, it cited the facility for six class III violations and two unclassified violations, which are referenced in the Second Amended NOI. The Agency issued tag 78 for staffing standards, stating that the “facility failed to obtain verification of freedom from communicable disease for several staff.” The staff members at issue are not otherwise identified in the Second Amended NOI. In the survey document, the staff members at issue are identified as staff members C and D. These staff members are identified in the matrix attached to the survey document as Larine Horton and Latasha Spivey, respectively. At hearing, only one person is referenced as not having the appropriate documentation, and then not by name. In fact, Ms. Pellot testified that this staff member was the same person she had cited the facility for previously, and that the staff member she is referencing (although not identifying by name or otherwise) is the staff member previously cited whose TB certificate was for more than six months prior to her hire date. That person, however, is neither Larine Horton nor Latasha Spivey, but rather was Stephanie Flores. As noted at Finding of Fact 82, her original TB test was too early, but there was a second TB test dated April 7, 2016. Assuming this is the staff member the surveyor meant to identify, the April 7, 2016, TB test would be current for the survey conducted in October of that year. Without more clarity, both in the Second Amended NOI and in the testimony presented, this tag cannot be substantiated. The next tag cited in the Second Amended NOI is tag 79, for not having staff who had both first aid and CPR certifications during a work shift. Ms. Pellot testified that she cited the facility for not having a staff member with first aid and CPR training from 11 p.m. to 7 a.m. No date is specified in her testimony, or in the Second Amended NOI. The survey document for October 18, 2016, indicates that the shift in question was on October 9, 2016. Ms. Pellot testified that she did not know whether Mr. Durra, the administrator, was in the facility during this time, or whether he had certification in both first aid and CPR. She stated that if he was there and had both certifications, it would satisfy this requirement. Her answer was the same with respect to Larine Horton, an employee listed on the matrix attached to the survey document as having both certifications. Ms. Pellot testified that she cited the facility based on who was listed on the shift schedule, but does not remember the names on the schedule and does not remember if she made a copy of it. Mr. Durra testified that he was present during the shift in question, and the Plan of Correction submitted by the facility also noted that he was there that evening. This deficiency has not been substantiated. Tag 81 was cited for failing “to provide or make arrangements for staff to receive In-Service training in Resident Rights in an ALF, Recognizing Abuse, Neglect, and Exploitation, etc.” The Second Amended NOI does not identify which staff and which specific courses were missing for those staff members. Similarly, the testimony at hearing was that there was “no evidence that one staff had received the training on recognizing abuse, neglect and exploitation; how to report adverse incidents –adverse incidents; facility emergency procedures; or elopement risk policies and procedures within 30 days of employment.” The matrix attached to the survey document for October 18, 2016, lists staff member D as the person needing the training, and identifies her as Latasha Spivey. Assuming that is the person about whom Ms. Pellot was testifying, her employment records offered by Cristal Palace show a license transcript from the Department of Health file showing that she had received training in abuse neglect and exploitations on January 27, 2015, and May 8, 2015, as part of her continuing education requirements as an LPN. In addition, there are certificates of other training taken in October 2016, shortly after the date of the survey. Ms. Pellot testified that she did not review any of the documents provided within 30 days after the survey. Clearly, those documents would not have been available at the time of the survey if Ms. Spivey had not taken the courses by that date, which was more than 30 days after she was hired. This was appropriately cited as a class III. During this survey, Ms. Pellot also cited the facility for failing to ensure that staff had in-service training in the facility’s DNRO procedures. Once again, no specific staff member is named in the Second Amended NOI. However, the survey document identifies Ms. Spivey as not having this training within 30 days of hire, as her certificate indicates she took the training October 27, 2016. Although clearly corrected within 30 days and not still outstanding, this was correctly cited as a class III deficiency. The Agency cited Cristal Palace for two alleged deficiencies regarding ECC plans: one for not having an ECC service plan for a resident identified as receiving ECC services, and one for not having records to confirm that nursing assessments were conducted at least monthly after a resident’s admission to ECC. An ECC service plan is a plan developed for a resident with a facility in conjunction with the family, on how the facility is going to meet the needs of a resident who exceeds traditional ALF criteria and remains there pursuant to a specialty ECC license. An ECC plan addresses the range of services the facility is going to provide. A nursing care plan, on the other hand, is a plan that addresses a specific disease process, as opposed to care and services. Ms. Pellot testified that Cristal Palace had a nursing plan, but not a service plan, for a gentlemen that is identified only as a resident using a wheelchair and needing urinary catheter care.11/ Ms. Mobley spoke with the surveyors about the ECC service plan. She testified that she provided to them an ECC service plan, and was told that it was incorrect because it was more like a nursing home plan. When Ms. Mobley inquired where the governing statutes gave guidance regarding how an ECC plan should look, she testified that she was told what she presented did not meet the (unidentified) standard. Ms. Mobley stated that she asked the surveyor whether it would make sense to go above the standards to make sure a resident is taken care of, in that nursing home residents usually require more care, and was told their plan was “too nursey.” Ms. Mobley also faxed the plan to an educational trainer for the Florida Assisted Living Association (FALA), who previously headed the ALF unit at the Agency, and neither could understand why the plan was not acceptable.12/ It would be appropriate to review the plan prepared by the facility and rejected by the Agency surveyor, but the plan that Ms. Pellot described as a nursing plan as opposed to an ECC plan was not offered into evidence. Without seeing what was prepared and rejected, there is not persuasive evidence that the plan was not satisfactory. Moreover, the Agency’s records indicate that this tag was cleared in January 2017. This violation is not substantiated. The final class III, cited in the October 18, 2016, survey, is for failing to have records to confirm that nursing assessments were conducted at least monthly after a resident’s admission to ECC. Ms. Pellot testified that a patient was admitted in August and when they were there in October, no nursing assessment was in the file. She also testified that Latasha Spivey was contracted to do assessments, but that Ms. Spivey indicated to her that she thought the assessments were to be quarterly. No records regarding this resident were offered into evidence to establish the resident’s identity, date of admission, or level of care required. The correction plan submitted by Cristal Palace following the October 18, 2016, survey, indicated that “preliminary service plans are implemented by the R.N. and will conduct monthly assessments.” It does not indicate one way or another whether the facility was previously conducting the assessments on a different interval. This deficiency was cleared on January 25, 2017. Without some documentation to identify the resident in some fashion, his or her admission date, and his or her need for the nursing assessments at all, this deficiency has not been substantiated. The final two tags cited in the Second Amended NOI for unclassified deficiencies that were included previously in the Second AC. The first one, for failure to include two employees on the clearinghouse roster, was addressed in Count V of the Second AC, and as reflected in Findings of Fact 135 through 138, this deficiency was not substantiated. The second unclassified deficiency, as alleged in Count VI of the Second Amended NOI and addressed at Finding of Fact 139, was also not substantiated. October 26, 2016 The Second Amended NOI alleges one class II violation, four class III violations, and one unclassified violation stemming from the survey conducted October 26, 2016. The class II violation, addressing the alleged failure to make reasonable efforts to refill pain medication for a resident, was addressed at Findings of Fact 119 and 120 with respect to Count I of the Second AC, and was not substantiated. The first class III violation tagged is tag 25, related to the day resident referenced in Count II of the Second AC. The allegation listed in the Second Amended NOI is that the “facility failed to prevent elopement of a day-care resident found at a Tire Kingdom store.” The notes in the survey, however, state the violation is for failing to know the general whereabouts of the resident. The Agency could not identify at hearing how long R.G. was away from the facility because it occurred when no surveyor was present, and it presented no evidence from anyone with personal knowledge about how long R.G. was gone from the facility. There is no definition of what constitutes “general awareness,” but it appears from the Agency’s view, staff should have been aware of R.G.’s whereabouts every minute of the day. Here, the most persuasive testimony was that R.G. was gone a very short time, and once the facility realized he was not where he had been last observed, based on her knowledge of R.G.’s interests, Ms. Mobley drove to the tire store and found him talking with the employees there. The adverse incident reports filed by the facility indicate that he walked out the front door behind another guest. If anything, the evidence showed that the facility’s consultant knew R.G. well enough to know where he would most likely go if he left the facility, and she was correct in her assessment. This tag is not substantiated. The next tag, listed as tag 32, is identified in the Second Amended NOI as a tag related to elopement standards, for failing to “ensure that a day-care resident’s photo was in the facility’s elopement book.” Ms. Andrews testified that several people identified R.G. to her as an elopement risk, but did not identify those people. Ms. Mobley, on the other hand, did not believe that he was in fact an elopement risk. While Ms. Andrews was informed that Ms. Mobley was the person who found R.G. at the tire store, she did not speak to Ms. Mobley about the incident. Although she testified that the facility “knew” he was an elopement risk, she could not recall if an elopement risk assessment was contained in his file, and no assessment identifying him as an elopement risk was offered into evidence. Most importantly, the incident at issue occurred in early August, and the facility was cited for it in late October 2016. Ms. Andrews did not know when R.G. stopped coming to the facility as a day resident. This issue is important because the tag here is for the failure of the facility to have his picture with pictures of other residents. Ms. Andrews testified that, while she could not remember where they were stored, she recalled seeing pictures of other residents but not R.G. Without establishing that R.G. was still attending the facility at the time she observed the pictures, Cristal Palace cannot be cited for failing to have his picture ID in the medical record system. This finding has not been substantiated. The next tag identified for October 26, 2016, tag 55 related to medication storage and disposal, alleges that a medication cart was left unlocked in the hallway. Ms. Pellot testified that while she was at the facility on October 26, 2016, she was on the second floor near the elevator and saw a medication cart that was unattended. The cart was unlocked, and she stayed at the cart for approximately five minutes before a staff member came back. Ms. Pellot testified that the staff member indicated that she was assisting a resident. Ms. Pellot acknowledged that there was no one present in the hall while she waited for staff to reappear, but whether the hall was empty or full does not really matter. It is a clear violation of rule 58A-5.0185(6)(b), which requires centrally stored medications to be kept in a locked cabinet, locked cart, or other locked storage area at all times. This is a class III violation because of the potential risk of residents taking medications not prescribed for them, and it is a substantiated violation. Agency records indicate that this violation was cleared by the Agency on January 27, 2017. The final class III violation cited for the October 26, 2016, survey, alleged that the facility failed to make sure that the air conditioning unit in a resident’s room was in good working order. Ms. Bulger is the surveyor involved with this tag. She testified that she went in the resident’s room, and it was warm; she was sweating when she left the room. When she checked the thermostat for the room, it read 84 degrees. The resident told Ms. Bulger that she had informed the administrator and that the resident was told they were working on it. Ms. Bulger also acknowledged that the facility offered to move the resident while the air conditioning was being fixed, and the resident did not want to move. She did not know when they offered to move the resident or when they called the repair service, stating, “they did not start working on it, that I could see, because I was asking for proof that they were trying to get it fixed and it was never provided until the day that it was brought up to them.”13/ The survey document contains hearsay statements from the resident’s relative and the maintenance person indicating an awareness of the problem and underscoring the offer to move the resident until the air conditioner was fixed. Mr. Dorra also testified that he went to Home Depot to get a portable unit for use until the existing unit was repaired. That unit was not in the room when the surveyor was there. The tag was cleared on January 25, 2017. The plan of correction submitted by the facility also reported that an electrician had come to the facility to repair the air conditioning, and it was functioning appropriately at that time. The facility also articulated a plan wherein any reported maintenance problem would be resolved within 48 hours of being reported. In this instance, there is no clear evidence of how long the air conditioner for this resident’s room was not functioning, or how long it was before the facility took action to have it repaired. All that has been established is that the day of the survey, the air conditioning was not working; that the facility had already offered to move the resident until it was fixed; that the resident refused to move; that the facility called a repairman at some unidentified point to get the unit fixed; that it bought a portable unit in the interim; and that the unit was fixed. Without more, this deficiency is unsubstantiated. The Agency also cited one unclassified deficiency with respect to this survey, regarding the facility’s failure to file a 15-day incident report related to the elopement of R.G. This tag has been addressed previously at Count III of the Second Amended NOI, and as stated in Findings of Fact 127 through 129, this deficiency was substantiated. January 25, 2017 The final series of deficiencies alleged in the Second Amended NOI are contained in survey reports issued January 25, 2017. The first tag is for the proof of financial ability to operate. The Second Amended NOI lists this as an uncorrected deficiency. However, as noted earlier with respect to Counts XIX and XX of the First AC and with respect to the first item listed for the Second Amended NOI, this deficiency was not substantiated with respect to the prior tag. No further information was introduced with respect to this tag to further substantiate any financial problems: while the survey report summarizes some balances apparently taken from various bank accounts, none of the documents from which this information may have come were admitted into evidence. No expert testimony or fiscal analysis was presented. This deficiency remains unsubstantiated. The next tag cited is identified as a class III violation related to supervision related to resident care. The Agency alleged as a factual basis that the “medication technician did not properly measure topical ointment; no documentation evidence that resident’s blood sugar was tested as ordered; no documentation evidence that facility notified healthcare provider when resident’s blood sugar was not tested.” With respect to the measurement of topical ointment, the only evidence provided on this issue was provided by a witness for Cristal Palace. The Agency did not introduce any testimony regarding this incident and did not mention this particular allegation in its Proposed Recommended Order. It is not substantiated. The next allegation deals with a patient for whom the resident records did not document that the facility tested her blood sugar. Agency Exhibit 15 identifies this resident as resident 3. Ms. Pellot testified that for one resident, the MOR said to test blood sugars three times daily, and the key at the bottom of the form said the resident was out of the facility. For several entries, a “3” was entered in the MOR, meaning that the medication was not given. Ms. Pellot did not testify, with respect to this particular resident, about any failure to notify the resident’s physician that the blood sugar readings were not performed. Testing blood sugar levels is not the same as giving medication, but is governed by the same standards. However, neither the 1823 nor the MORs for this patient were offered by the Agency as exhibits at hearing. There is no method to analyze documents not included in the record. No deficiency is substantiated with respect to this resident. The Agency issued a tag 160 for the failure to maintain an updated census for its residents. Ms. Andrews testified that there was a resident that had not been at the facility for several months, but was still listed on the admission/discharge log as a current resident. The summary of findings in the survey document states that the person was listed as discharged, but that no discharge date was identified. It cannot be determined whether the statement by Ms. Andrews or the narrative in the survey document is the most accurate, because the resident is never identified in any manner where even initials could be compared against the admission/discharge log, and the Agency did not offer the admission/discharge log into evidence. This tag, classified by the Agency as an uncorrected class III violation, was not substantiated. The Agency also cited the facility for a new class III violation, based upon the facility’s failure to maintain updated MORs for residents. The Second Amended NOI does not specify how many residents and/or their identities. The only testimony provided at hearing with respect to this tag is by Ms. Pellot, who testified simply that when there are blank slots on the MOR and no notation in the back, the assumption is that the medication is not given. She stated that on three out of eight records that she reviewed, there were multiple blanks with no explanations. She provided no further details. The survey document provided additional detail that apparently is taken from the residents’ 1823s and MORs. None of the 1823s, which would establish that a resident needed assistance with medications, and what medications were to be administered, were admitted into evidence. Likewise, the MORs that the Agency alleges are deficient were not offered into evidence by the Agency. Without this evidence, the alleged deficiency is not substantiated. The Agency also re-alleges the tag for failing to submit an adverse incident report “when law enforcement was called to investigate alleged stolen narcotics.” This deficiency is related to the incident discussed in Count XIII in the First AC, and addressed in Findings of Fact 87 through 90, and again at Finding of Fact 190. It is not clear whether the adverse incident reports for this incident were ever filed. The Agency appropriately found an uncorrected, unclassified violation for this tag. One of the purposes of the January 25, 2017, surveys (there are five separate survey documents) was to revisit the facility with respect to its monitoring of the ECC license. As part of that survey, the facility was cited for having a staff member whose CPR certification was from a provider that was not approved. The testimony did not identify the staff member or the training provider that was not approved, and a copy of the unapproved certification was not admitted. The survey document identified the staff member as staff member B. However, none of the matrixes, attached to any of the five surveys dated January 25, 2017, identify staff member B. Moreover, there is nothing to identify the education provider, much less to demonstrate that the provider is not sponsored by an entity named in the Agency’s rule.14/ This deficiency has not been substantiated. The facility was also cited for tag 81, as an uncorrected class III violation for staff in-service training. The Second Amended NOI alleges that “the facility did not have any documented evidence indicating staff received In-Service training regarding Recognizing Abuse, Neglect and Exploitation and reporting Adverse Incidents in ALFs.” The only testimony presented for this violation was that “staff who had been hired for more than 30 days did not have the training – the mandated training – in-service training.” Once again, no staff member is identified in the testimony. No citation is made in the Agency’s Proposed Recommended Order to any exhibit to corroborate or further explain this testimony. Agency Exhibit 16 addresses this tag and identifies the staff member as staff member D, but that staff member is not identified in the matrix attached to any of the January 25, 2017, survey documents. This deficiency has not been substantiated. The Agency also cited the facility for tag Z815. The Second Amended NOI alleges that the facility’s roster on the clearinghouse site did not include one of the facility’s staff members. The staff member is not identified in the Second Amended NOI or in the testimony at hearing. A copy of the clearinghouse roster was not offered into evidence. This deficiency, listed as an unclassified violation, was not substantiated. Finally, the Agency issued tag Z821 as an unclassified violation in terms of reporting requirements. The survey document indicates that this citation is related to the August 5, 2016, incident regarding the day resident, R.G. The Agency offered no testimony regarding this deficiency in connection with the January 25, 2017, survey, and simply cited to the survey document listed as Agency Exhibit 17. As noted in Finding of Fact 127, the 15-day adverse incident report for this event was filed January 30, 2017, a few days after this follow-up visit. The deficiency has since been cleared, but at the time of the survey, was appropriately cited as an uncorrected, unclassified violation. In sum, of those violations listed in the Second Amended NOI that are not duplicates of the two Administrative Complaints, the Agency proved one class III violation for the June 8, 2016, survey that was cleared prior to the issuance of the initial NOI; two class III deficiencies related to training documentation from the October 18, 2016, survey, at least one of which was cleared prior to the initial NOI; one class III violation and one unclassified violation from the October 26, 2016, survey, both of which were cleared prior to the initial NOI; and two unclassified violations addressed to reporting requirements, at least one of which was cleared prior to the initial NOI. General Findings As noted early on, Cristal Palace is a relatively new facility. Its growing pains have been difficult and due in large part, to disorganized, poorly prepared administrative staff. While it is suspected that what was presented at hearing in terms of staff members and staff turnover is just the proverbial tip of the iceberg, the evidence shows that at least one assistant administrator with whom the Agency interacted during surveys, Mariah Wiggham, was cited for poor performance, and left employment with the facility on July 6, 2016. Documentation issues, however, did not end with the termination of Ms. Wiggham’s employment. Mr. Dorra has recognized the need for better administration, and early on in the licensure process hired Ms. Mobley to assist him with credentialing for insurance and other matters. Over time she was asked to help with other issues, and was given free access to check on issues at the facility. Ms. Mobley has significant experience in the ALF field, and has worked in the field for about ten years. She has her own ALF and is currently a regional director for FALA. Ms. Mobley’s testimony was straightforward, consistent, and credible. Ms. Mobley is not the answer to Cristal Palace’s problems. She left the facility in approximately May 2017, after she advised Mr. Dorra that he should hire a management company experienced in ALFs, because the managers he had hired were subpar. While she did not endorse those managers, she believed that the management problems did not trickle down to the residents, and that the care given to the residents was excellent. Ms. Mobley testified to Mr. Dorra’s efforts to put in safeguards to help in terms of compliance. A new software program was implemented to maintain electronic resident records in 2016. The electronic program alerts the administrator when something is not given to a resident on time, and is also tied to the pharmacy as well, providing notice two weeks before a medication runs out. According to Ms. Mobley, Mr. Dorra also purchased a program to provide all of the necessary in-service training. Correction plans also referenced the purchase of “Sushoo software” to assistant with organizing the timeliness of documentation related to personnel records and training issues. While it appears that Mr. Dorra earnestly desires to provide a safe and pleasant residence for seniors, he has kept his involvement fairly limited to the financial end of the operation, leaving, perhaps too much, the direct care aspect of running Cristal Palace to his director of nursing, nurses, CNAs, and med techs. If this case shows anything, it is that a stronger management well-versed in running an ALF and familiar with all of the regulations related to doing so, is required. By the same token, the Agency’s performance seems to be somewhat haphazard as well. While section 408.811 speaks in terms of correcting deficiencies within 30 calendar days, the follow-up visits in this case did not ever occur within a 30-day period. For example, the follow-up visits for the surveys conducted August 26, 2015, occurred May 25, 2016, and June 8, 2016. The follow-up visit for the survey conducted October 21, 2015, took place March 1, 2016, and the follow-up from the December 17, 2015, survey also occurred May 25, 2016. Agency personnel were asked frequently whether they had reviewed the documentation sent to the Agency in plans of correction or sent in immediately following a survey, and each time the testimony was that surveyors did not review that information and instead relied only on what was presented during the survey inspection. Who actually reviews the information remains a mystery, because the Agency never identified what, if anything, is done in response to a facility’s attempts to come into compliance by submitting documentation that should have been available to the surveyors at the time of the survey. There was testimony that when the surveyors were present, there were usually three or four of them, and each one would be asking for different documentation. Ms. Mobley testified that on one occasion, she went to the room where the surveyors were working to retrieve a file and they had papers all over the place, and things were “just in shambles.” Whether or not files were in the disarray that she described, the testimony casts some doubt as to whether certain documents were truly not there or were instead misplaced. In at least one instance, the deadline provided by the Agency bordered on unreasonable. For example, there was an instance where Mr. Dorra had advised that there was an issue with a bank account because of a fraudulent check that someone had written on the account. The surveyor, Linda Gulian-Andrews, appropriately requested documentation and, when the administrator was unable to provide the documentation that day at 4:45 p.m., she gave him a “grace period” until 9:00 a.m. the next morning. Given that the documentation Ms. Gulian-Andrews was requesting required communication with the bank, this “grace period” was illusory at best.15/ Ms. Gulian-Andrews acknowledged that there were at least three surveyors there the day she made the request for documentation, that staff for the facility had to bring documents to the surveyors, and that she did not know whether the administrator may have been addressing requests from other surveyors at the same time she was requesting documents. All this is to say that this is a case where the Agency was demanding strict compliance yet did little to prove its case at hearing, and the facility was suffering from a lack of strong management to provide the documentation required. While the Agency proved some of the claims it presented, the majority of violations proven represented documentation issues and reflect an overall failure to get a handle on the paperwork necessary to run a successful facility in a highly regulated area. Ms. Mobley testified that, based on her experience in the industry, and after reviewing both the services at Cristal Palace and the services provided at some of the other facilities in the area, Cristal Palace should stay open. Her opinion has been taken into account with respect to the ultimate recommendation in this case. With respect to the renewal application, no evidence was presented identifying deficiencies in the renewal application, and the Second Amended NOI does not indicate that the Agency’s intended action is based on any deficiency in the application. Nor, as noted above, is there any evidence that the Agency conducted a biennial survey in response to the application to renew. All of the issues identified in the Second Amended NOI predate the renewal application. Although the Agency is authorized to issue a provisional license while the denial of the application is pending, it has refused to do so. This refusal has further complicated Cristal Palace’s ability to provide services to its residents or to attract new residents, because it cannot display a current license of any kind.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order with respect to the Administrative Complaints docketed as Case Nos. 17-2149 and 17-2164 imposing $3,000 in administrative fines and assessing a survey fee in the amount of $500. It is further recommended with respect to Case No. 17-3849, that the Second Amended NOI be vacated and that the Agency complete the application review process by conducting a renewal inspection as required by sections 408.806 and 408.811, before taking agency action with respect to Cristal Palace’s renewal application. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 29th day of June, 2018.
Findings Of Fact On August 7, 1985, the Respondent, Department of State (Department) issued a job opportunity announcement (announcement number 85-150), whereby it expressed the intention to fill an employment position of "Archives Assistant" in its Division of Archives, History and Records Management. The qualifications for this position consist of a Bachelor's degree with a major in history, library science or one of the social sciences, or a Bachelor's degree and one year experience in the preservation or restoration of documents or materials. The degree in library science is a minimal requirement and is consistent with the minimum qualifications established by the Career Service class specifications prepared by the Department of Administration for the Archives Assistant class title. Twenty-two applicants who met these minimum qualifications applied for this position in response to this announcement. On August 20, 1985, the Respondent issued a second job opportunity announcement (announcement number 85-159) for this same position. The qualifications for this position obviously were the same as those specified in announcement number 85-150. The Respondent issued this second announcement in order to solicit applications from a broader range of applicants in order to fulfill its goal of finding the most qualified applicant for the position. As, a result of the second announcement, an additional 13 applicants meeting the minimum qualifications filed applications. Both job opportunity announcements required that all applicants submit a completed copy of the Florida Employment Application form to the Department in order to apply for the position. The Petitioner did not submit a completed application form, however, in a letter dated August 26, 1985, she submitted her resume to Mr. Randall Kelly, Director of the Division, wherein she expressed her desire to be employed in the vacant position at issue. The Respondent Department received the Petitioner's letter on August 27, 1986, one day before the deadline for filing applications related to the second employment announcement referenced above. In spite of the fact that she had not submitted an application in the proper form and manner, the Petitioner was considered for the position of Archives Assistant by Gerard Clark of the Division of Archives, History and Records Management (Division). Mr. Clark was an Archivist Supervisor II at the time the position was advertised and was responsible for reviewing, screening and interviewing applicants for the position. He was responsible as well for selecting an applicant for the position and recommending an applicant selection to the Division Director, Mr. Randall Kelly. Mr. Clark interviewed nine of the 35 eligible applicants. He did not interview the Petitioner because he was already familiar with her work and her qualifications since he had been her supervisor when she worked with the Division as an intern. It was the policy of the Respondent at times pertinent hereto not to interview every applicant, but to use the interview process to get to know applicants better and to determine the most qualified applicant. Since Mr Clark was already aware of the Respondent's quality of work and qualifications, he did not deem it necessary to interview her. She was considered an eligible candidate for the position, however. The Petitioner had worked part time for the Division as an Archives Intern from May 1984 to July 1985. At that time she was a student at Florida State University in a Master's degree program within the History Department and received academic credit for her work with the Division. She also received monetary compensation for her internship from the Senior Community Service Employment Program, a federal grant program, during this time. Ms. Nadine Doty-Tessell submitted an application for the subject position on August 19, 1985, and was also considered an eligible applicant by the Respondent. Mr. Clark ultimately selected Ms. Doty-Tessell as the most qualified applicant and recommended her hiring to Mr. Randall Kelly. Mr. Kelly accepted Clark's recommendation and hired Ms. Doty-Tessell for the Archives Assistant position. In a September 11, 1985 letter to the Petitioner, Mr. Kelly notified her that another applicant had been chosen. In an October 3, 1985 letter to the Petitioner, Mr. Jay Kassees also notified her of the selection of another candidate, as well as that the selection constituted the promotion of an employee within the agency. After receiving this information, the Petitioner filed a charge of discrimination with the Equal Employment Opportunity Commission on October 29, 1985. She alleged she was denied this position because of her age, in violation of the Age Discrimination in Employment Act, 29 USC 621 et seq. On November 4, 1985, that Commission referred the charge of discrimination to the Florida Commission on Human Relations. On June 30, 1986, following an investigation, the Commission determined that no cause existed for the filing of the charge but, pursuant to its rules, ultimately referred the matter to the Division of Administrative Hearings because the Petitioner filed a Petition for Relief following the determination of "no cause." The case ultimately came on for hearing on the above date. Ms. Doty-Tessell was a Library Technical Assistant I in the State Library of Florida within the Respondent's Division of Library Services since April 1983 and was so employed at the time she applied for the Archives Assistant position at issue. She has a Bachelor of Science degree in library science from Florida State University and was working in a Master's degree program in library science at F.S.U. She has since earned that Master's degree. From August 1981 to July 1982, Ms. Doty-Tessell acquired a full year of direct archival experience while employed as a Library Technical Assistant. She acquired this experience by arranging, appraising, indexing and describing the voluminous papers in the Mildred and Claude Pepper archival collection at the Florida State University Library. During her tenure as a Library Technical Assistant I with the Respondent's agency between April 1983 and August 1985, she acquired an additional 29 months of archivally related work which also served as a qualification for the position at issue. The Career Service system position description for a Library Technical Assistant I, which was the position formerly held by Ms. Doty-Tessell, describes the duties and responsibilities of that position as encompassing a thorough knowledge of reference materials and search methods, extensive searching experience, coordinating the State Library of Florida's flag collection, coordinating and maintaining the inter-library paperback collection and performing bibliographic searches. Mr. Clark's and Mr. Kassees' testimony establishes that these duties and responsibilities are "archivally related" and that they further qualified Ms. Doty- Tessell for the Archives Assistant position in terms of experience. Additionally, the duties and responsibilities in the Career Service position description for Archives Assistant are close parallels to those for Library Technical Assistant I. In view of her work on the Pepper collection and her experience as a Library Technical Assistant, Ms. Doty-Tessell was established to have over 3 1/2 full time years of archival or archivally related experience upon her filing of her application for the subject position. Although Petitioner alleged that she had worked for the Respondent from May 1984 to July 1985, that was not full time employment. During this time she worked for 14 months on a part time basis and thus acquired a total of 7 full time months of archival experience. She was not a salaried employee at this time. Although the Petitioner received an excellent rating in her initial employment performance evaluation as an intern, her subsequent and final evaluation of March 28, 1985 showed that her performance had declined to a satisfactory level. During the rating periods between April 1983 and April 1985, Ms. Doty-Tessell received three outstanding evaluations, the highest evaluation in the Career Service performance evaluation system at that time. It was established by the testimony of Mr. Kassees that the Respondent has a consistently followed, written policy to accord first consideration for open positions to employees within the Department of State who are qualified for promotion to vacancies. Under this policy, where two or more applicants are equally qualified and one is eligible for promotion, that applicant is accorded first consideration since that applicant is already entitled to a promotion. This policy is based in part on the master contract between the State of Florida and various unions which represent State employees. Ms. Doty-Tessell was shown to be qualified for promotion and to have been an employee .of the Department at the time the position was advertised and at the time she applied for it. The Archives Assistant position at issue constituted a promotion for her. Both the Petitioner and Ms. Doty-Tessell had comparable educational qualifications for the position, but Ms. Doty-Tessell was more qualified than the Petitioner because she had more archival and archivally related experience and had received superior performance evaluations to those of the Petitioner. In a letter Petitioner wrote on July 10, 1985 to the Secretary of State, she expressed significant criticism of the Division and her supervisor regarding her tenure as an intern with the Division. She accused fellow workers of being "gold brickers who waste time, giggle and walk aimlessly in the halls." She complained that their supervisor, Mr. Clark, was arrogant toward her. Mr. Clark testified that the Petitioner's critical comments about him and other employees in the Division concerned him and were an additional factor in his decision not to hire her because he was concerned about her ability to get along with her fellow workers, as well as him. Both Mr. Clark and Randall Kelly selected Ms. Doty-Tessell for the subject position because she was the most qualified candidate and she was further given first consideration because she was already employed by the agency and was qualified for promotion. Both Mr. Clark and Mr. Kelly testified that their hiring of Ms. Doty-Tessell was not related to her age or the Petitioner's age. Ms. Doty-Tessell was 26 years of age at the time of her hiring and the Petitioner was 59 years of age. Although the Petitioner testified she was upset and humiliated because she was not selected for the position, she did not offer any testimony which substantiates her allegation that she was not selected on account of her age. At the time the Respondent hired Ms. Doty-Tessell there were 48 employees out of 133 employees in the Division who were 40 years of age or older. This represents 36 percent of the total staff of the Division. At the same time, 31 percent of the 13 employees in the Bureau of Archives were 40 years of age or older.
Recommendation Having considered the foregoing Findings of Fact, Conclusion of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
Findings Of Fact William H. Mathias was initially employed by SWFWMD as Director of Employee Relations on January 30, 1980, at pay grade At the time of Petitioner's employment William C. Tatum was Executive Director of SWFWMD. Petitioner has over ten years' experience in personnel relations and security and holds two master's degrees. Due partly to Petitioner's aggressiveness and strong personality, he began exerting influence in the personnel division in pushing the Personnel Department in directions not necessarily approved by Tatum. Tatum wanted to reduce the influence the Personnel Department was having on SWFWMD. On July 26, 1982, Petitioner was transferred to the Field Operations Division with no change in grade. Exhibit 5, which announced this transfer, stated Petitioner was transferred as Assistant Director. On July 28, 1982, a subsequent memorandum, Exhibit 6, was issued by Tatum changing Petitioner's title from Assistant Director to Acting Administrative Assistant. Prior to this transfer Tatum spoke with William F. Sietman, Director of Field Operations, who advised Tatum that he had no need for Petitioner in the Field Operations Division however, Tatum insisted that Petitioner, with his two master's degrees, could make a valuable contribution to SWFWMD if placed in the right niche. Shortly thereafter, Tatum was replaced as Executive Director by Gary W. Kuhl, who was promoted to that position from Assistant Executive Director. The first evaluation report submitted by Sietman on Petitioner, at the end of his first six months on the job, was unsatisfactory. Petitioner appealed to Kuhl, who withdrew his evaluation partly because no job description had been prepared for the position occupied by Petitioner. Kuhl directed the preparation of a job description for the work to be done by Petitioner. When the job description_ was prepared, the position was given the title of Program Management Analyst and the duties to be performed are as contained in Exhibit 1. Principally, Petitioner's function was to do some coordinating of the budgets prepared by the various sections in Field Operations, coordinate planning and negotiate and oversee the building maintenance contract. This position was a staff function as opposed to a line function in which the incumbent would exercise direction, or command, over the section heads. As a staff function his duties were coordination as opposed to direction. Subsequent to his initial unsatisfactory evaluation at the end of his six months probationary period, Petitioner's evaluations improved each evaluating period and at the time of his termination his performance can be described as very good. However, on several occasions complaints about Petitioner giving personnel advice to Respondent's employees regarding overtime, job classifications, and pay grades reached Kuhl. This was the subject of a memorandum addressed to Petitioner and Sietman by Kuhl on May 15, 1984 (Exhibit 7). Petitioner was told to leave personnel matters and advice to the Personnel Department or face disciplinary action. Changes in the functions imposed on Respondent in 1984 necessitated the employment of additional technical people and the establishment of additional technical positions at SWFWMD. The Governing Board indicated to the Executive Director that the budget could not be raised by the amount needed to fund all of these positions and that cuts would have to be made. Kuhl met with the various division heads to require more justification for the proposed new positions and to ascertain which existing positions they could eliminate. This resulted in a proposed list of positions including the librarian, Petitioner's position, and other positions currently unoccupied. As a result of these discussions it was concluded the unfilled positions and the position of Program Management Analyst could be eliminated. By memorandum dated August 17, 1984 (Exhibit 4), Kuhl advised the Governing Board of the proposed reduction in work force. By letter dated August 20, 1984 (Exhibit 15), Kuhl advised Petitioner that the position of Program Management Analyst was eliminated effective immediately and that he was eligible to apply for any other position in SWFWMD for which he was qualified. Petitioner appealed the termination to the Governing Board and, when the Board affirmed his termination, he filed the instant petition. Prior to the transfer of Petitioner to the Field Operations Division, the budget was prepared by each section chief for his section, and the division director coordinated the budgets. While Petitioner was assigned to Field Operations, he performed this budget coordination role previously taken by the director. When Petitioner's position was eliminated, the division reverted to the way it operated before Petitioner's arrival, with little, if any, noticeable effect. The role Petitioner had assumed in supervising the maintenance contract also reverted back to where it was before Petitioner's arrival, again with no noticeable effect.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. Petitioner, Carolyn Pittman, is a single mother with three children. At all times pertinent to this proceeding, Petitioner was employed by HRS at the Landmark Learning Center ("Landmark") as a Human Service Worker I. Petitioner began working at Landmark beginning sometime around 1980. By certified letter dated January 26, 1990, Respondent advised Petitioner that she was deemed to have abandoned her career service position. That letter advised Petitioner that she had the right to petition the State Personnel Director for a review of the case and that any such petition for review had to be filed within twenty calendar days after the receipt of the letter. The return receipt for the certified letter was signed by Petitioner and indicates the letter was delivered on February 2, 1990. Petitioner's handwritten request for a hearing was sent to the State Personnel Director and received on March 2, 1990. In her request, Petitioner indicates that she received the certified letter on February 14, 1990. However, the greater weight of the evidence established that the letter was received on February 2, 1990. Therefore, the request was not timely filed in accordance with the requirements set forth in the certified letter. On March 29, 1990, the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. That Order states that "This agency accepts the Petition and hereby elects to request the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct a fact finding hearing in this matter. The issue for resolution will be whether or not the Petitioner abandoned her position and is properly deemed to have resigned from the Career Service." During the time she was employed at Landmark, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. While employed at Landmark, Petitioner has filed at least seven separate workmen's compensation claims. In addition, Petitioner has taken three leaves of absences totaling approximately one year. As a result, Ms. Pittman was aware of Landmark's requirements regarding workmen's compensation claims and leaves of absence and her need to provide documentation regarding her course of treatment to the Landmark Personnel Office. On September 25, 1989, Petitioner was injured while at work. Petitioner was helping a nurse with a client and claimed to have sustained a back and/or neck injury. She was transported by ambulance to Palmetto General Hospital where she was examined and released. Petitioner was not required to stay over night at the hospital. Whenever an accident occurs at Landmark involving one of the employees, the employee is referred by the Personnel Office to a physician who is on an approved list of doctors established by the Division of Risk Management. In the case of a unique injury or special need, the administrative staff will request permission from the Division of Risk Management to use another physician. On September 27, 1989, Petitioner was sent by the Landmark Personnel Office to a Medical Clinic, the Worker's Compensation Medical Center, for follow-up treatment. At the Worker's Compensation Medical Center, Petitioner was diagnosed as having a strain of the neck and back. She was given a neck collar, a prescription for drugs and advised to rest in bed. After two weeks, Petitioner claimed there was no improvement in her condition. On October 11, 1989, the Landmark Personnel Office staff scheduled an appointment for Petitioner with an orthopedist, Dr. Steven Nadler. Petitioner visited Dr. Nadler on October 17, 1989. After examining the patient, Dr. Nadler issued a report dated October 23, 1989. Dr. Nadler's report was sent to the Personnel Office at Landmark. Dr. Nadler found no spasm, no limitations, excellent range of motion, no neurological deficit, no fractures or dislocation and no signs of root irritation. The closing comment on Dr. Nadler's report states as follows: It appears at this time that Ms. Pittman has sustained a soft tissue injury to the neck and possibly the lower back at the time of her accident in September of this year. At this time I find no evidence of neurologic deficit or signs of nerve root irritation on examination today. I find no objective findings to go along with her subjective complaint and is [sic] also interesting to know [sic] that merely touching of her skin causes her to complain of pain which is sometimes seen in patient's [sic] who are exaggerating their symptoms. I feel at this point that no treatment is needed from an orthopedic point of view. I would recommend that she return to her regular activities and work. I do not feel she has sustained any permanent disability from this injury. After seeing Dr. Nadler, Petitioner requested a neurological examination. Because none of the previous treating physicians had found a need for a neurological consult, the Landmark Personnel Office initially denied Petitioner's request. However, the Personnel Office did offer to send Petitioner to a chiropractor or another orthopedist. One of the reasons for agreeing to send Petitioner to another doctor was to confirm whether a neurological examination was necessary. The Personnel Office scheduled an appointment for Petitioner with another orthopedic specialist, Dr. Kerness, on November 2, 1989. However, Petitioner did not keep this appointment. After missing her appointment with Dr. Kerness, Ms. Pittman arranged on her own to see another orthopedic physician, Dr. Bermann. Dr. Bermann called for authorization to see the patient on November 3, 1989. Although Dr. Bermann was not on the Division of Risk Management's list of approved physicians, Landmark agreed to pay him for his treatment of the Petitioner. Dr. Bermann provided Petitioner with a slip indicating she should not work until November 10, 1989, after he was scheduled to see her. That slip was provided to the Personnel Office. Petitioner was advised that she was required to provide the Personnel Office with documentation regarding her work status after that visit. Petitioner was also advised that she was required to keep her supervisor and the Personnel Office apprised of why she was not at work and that her reports should include a medical statement from an authorized physician. On November 9, 1989, Dr. Bermann put Petitioner on a therapy program for two weeks and advised her not to return to work. After Petitioner completed therapy, Dr. Bermann approved her return to work on a light-duty status. Petitioner returned to work on December 1, 1989. Petitioner was assigned to light duty work in the card shop pasting greeting cards together. After working for four days, Petitioner complained that she was unable to continue and left work on December 5, 1989. Petitioner returned to Dr. Bermann on December 7, 1989. At the end of that visit, Dr. Bermann provided her with a note that indicated she was not to return to work until she returned to see him again on Friday, December 29, 1989. That note was provided to the Landmark Personnel Office. Prior to the Petitioner's visit to Dr. Bermann on December 29, 1989, Elaine Olson, a personnel technician with Landmark, contacted Dr. Bermann. Dr. Bermann agreed to provide Ms. Olson with documentation as to Petitioner's ability to return to work after her next visit. The Petitioner was seen by Dr. Bermann on December 29, 1989. In his report regarding that visit, Dr. Bermann noted "[f]rom the orthopedic point of view, patient can return to work on a trial basis. However she wants to see what the consultant will say." This report was sent to the Personnel Office. Petitioner denies ever receiving a copy of Dr. Bermann's December 29, 1989 report indicating that she could return to work and there is no evidence indicating that she was provided with a copy of that report. Although Dr. Bermann indicated that he saw no reason why Petitioner could not return to work, he requested permission from Landmark to refer her to a neurologist, Dr. Bader, to confirm his findings. Dr. Bader was not on the list of approved physicians prepared by the Division of Risk Management. However, Landmark arranged for authorization of Dr. Bader's treatment of Petitioner. On January 9, 1990, Elaine Olson advised Petitioner that she had received the report from Dr. Bermann indicating that she was able to return to her job as of December 29. Ms. Olson was aware that Petitioner had an appointment with Dr. Bader scheduled for the next day. Ms. Olson advised Petitioner that if Dr. Bader did not find anything wrong with her, Petitioner would be removed from Workmen's Compensation and placed on unauthorized leave without pay and therefore could be subject to abandoning her position. Petitioner indicated that she intended to see another doctor whose name was not disclosed. Ms. Olson advised her that no other doctor had been approved and that Petitioner would be responsible for paying any other physician that she saw. Dr. Bader saw the Petitioner on January 10, 1990. Following his examination of the patient, Dr. Bader advised Elaine Olson that he did not find any neurological problems with the Petitioner and that her complaints were inconsistent with her report of the accident. Dr. Bader indicated that he saw no neurological reasons why she should not be working, but that it was Dr. Bermann's role to decide when the patient could return to work. Although Dr. Bader did not find anything wrong with her, Petitioner did not return to work on January 11 nor did she obtain authorization from her supervisors or provide any documentation to them regarding her absence on that date. Beginning on January 11, 1990, Petitioner's absence from work was treated by Respondent as unauthorized leave without pay. From January 11 through January 26, 1990, Petitioner did not return to work and did not provide any documentation from any doctor stating that she was unable to work. Between January 10 and January 26, 1990, Ms. Olson attempted to contact Petitioner without success. On January 26, 1990, Petitioner prepared its letter to Petitioner indicating that she was deemed to have abandoned her position. Petitioner contends that she did not return to work because she never received a note from Dr. Bermann advising her that she should return to work. She claims that she thought she was supposed to return to Dr. Bermann after seeing the neurologist. The evidence established that Petitioner was advised that she was to return to work on January 11, 1990 unless Dr. Bader provided a report indicating that she was unable to work. Petitioner was also advised that her failure to return to work or provide medical authorization for her absence would result in her being considered absent without authorization. There is some indication that Petitioner may have been seen at the Worker's Compensation Medical Center and by Drs. Nadler and Bermann on occasions other than those detailed above. However, no persuasive evidence was introduced to establish the dates and/or results of those visits. More importantly, Petitioner never provided any additional documentation to the Personnel Office that her physicians had advised her not to return to work. At the hearing, Petitioner provided a handwritten note dated January 18, 1990 that indicates it is "from the desk of Dr. Stuart A. Kaplan." Dr. Kaplan is a chiropractic physician to whom Petitioner was apparently referred by her attorney. That note states that Petitioner had been receiving treatment from December 7, 1989 to January 18, 1990 and that she been unable to work due her back condition. Petitioner also produced at the hearing a type written note on the stationary of Dr. Kaplan dated January 26, 1990. This second note states that Dr. Kaplan began treating Petitioner in October and that she was still unable to work due to her condition. Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. Dr. Kaplan did not testisfy at the hearing. Dr. Kaplan is not on the Division of Risk Management's approved physician list. Petitioner's visits to Dr. Kaplan were not approved by Landmark and Landmark had previously advised Dr. Kaplan that it would not be responsible for payment of his fees. No records of Dr. Kaplan's treatment of Petitioner were provided to the Personnel Office prior to February, 1990. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Kaplan's reports prior to receiving the January 26, 1990 certified letter. However, the more creditable evidence established that from January 10 through at least January 26, 1990, the Personnel Office was not provided with any documentation from any physician that Petitioner was unable to work. On February 21, 1990, Petitioner attempted to return to work, but was instructed that she was deemed to have abandoned her position. On her February 21, 1990 visit to Landmark, Petitioner presented her supervisors with a form from Dr. Bermann's office which indicates that she was approved to return to work on a trial basis. This form was dated February 19, 1990. Petitioner contends that she had never previously received a "return to work slip" by Dr. Bermann. However, the evidence established that she was alerted at least by January 9, 1990, that Dr. Bermann did not believe she needed to stay home from work and that Dr. Bermann had cleared her to begin work as of December 29, 1989. In order for her absence from work subsequent to January 10, 1990 to be justified, Petitioner knew that she had to provide a physician's report indicating that she could not work. Petitioner did not present any further documentation to justify her refusal to return to work until some time after January 26, 1990. Even then, the only documentation was from an unapproved chiropractor.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Carolyn Pittman's challenge to the determination that she abandoned her position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 4th day of February, 1991, at Tallahassee, Florida. J. STEPHEN MENTON 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 4th day of February, 1991. COPIES FURNISHED: Carolyn Pittman, pro se, 4270 NW 192nd Street Miami, Florida 33055 Julie Waldman, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Suite S424 Miami, Florida 33128 William A. Frieder, Esquire Senior Attorney Department of Administration 438 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Petition for Dismissal filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent has been employed by the Broward County School Board since August 1, 1977. In June of 1981 she became the budget director for the school district and was subsequently re-appointed as the budget director, pursuant to a series of annual contracts, through June 30, 1991. On April 8, 1991, Respondent was given a notice of non-renewal which would result in her contractual employment concluding on June 30, 1991. However, allegations of misconduct, specifically that Respondent had engaged in unlawful employment practices to exclude black applicants from employment positions within the budget office, were brought to the attention of William Dandy, the deputy superintendent, on January 16, 1991. Dandy immediately caused an investigation to be conducted by the School Board's special investigative unit. As a result of that investigation, Virgil L. Morgan, superintendent of schools, filed the subject Petition for Dismissal with the School Board seeking to terminate Respondent's employment as of June 9, 1991, three weeks before her annual contract expired. In 1987 an Order was entered approving the settlement of a civil rights action which had been filed in federal court against the Broward County School Board. The settlement entered into recognized the under-representation of blacks as employees in the School Board's data processing department and in the budget office managed by Respondent. The settlement specifically required that those two departments hire qualified black applicants for employment in order to correct the under-representation in those departments. Immediately following the entry of that court order, then-superintendent Leary conducted a meeting with administrative personnel and specifically directed those with hiring responsibilities to comply with the court order. Also following entry of the federal court order, associate superintendent Thomas P. Larkin, Respondent's immediate supervisor during her ten years as the budget director, ordered Respondent to hire qualified blacks for the next openings in her department. He specifically directed Respondent to comply with the federal court order and to find and recruit qualified blacks if that were necessary. On many occasions thereafter, Larkin again told Respondent to recruit qualified blacks and to hire them. Respondent understood the directive given to her both by then-superintendent Leary and by associate superintendent Larkin. Over the ten-year period that Respondent served as the budget director, there were many vacancies and many persons were hired in the budget office for both clerical and professional positions. The absence of black employees in the budget office over that extended period of time was not accidental. It was easy for staff members in the budget office to understand why only white persons worked there. Respondent was open and blatant in her dislike for black persons. She referred to specific black employees within the school system as being dumb and lazy. She told her staff that black teenage girls at a certain high school in Broward County got pregnant so that they could collect welfare. She voiced her opposition to a black person being nominated for membership on the board of a professional association by pointing out that there was already one black on the board and putting another on the board would degrade the association. During her ten years as budget director, Respondent occasionally referred to black School Board employees as "niggers" or "black bastards" when talking to her budget office staff. She also made statements about "lily-white" neighborhoods and told her staff that she was not going to hire any more "blacks, southern baptists, gays, or pink cows". Respondent made derogatory comments to her staff about specific black employees of the School Board in a blatant attempt to humiliate those employees. She told her staff that a certain employee had two strikes against him: one was that he was black, and the other was that he wanted to be called "Mr." After a budget office employee once told a story about a game show contestant responding to the clue word "doe" (a female deer) with the word "knob," Respondent began referring to black persons as "doe knobs". Before Respondent became the budget director, she was employed in the School Board's management audits department where she supervised a black employee who voluntarily took a demotion and a paycut to be assigned to another individual rather than work for Respondent. Within a few weeks of that person's voluntary demotion, Respondent was re-assigned from management audits to the budget office. When that demoted employee heard that Respondent was being transferred, he told other School Board employees at lunch that, "I feel like such a fool." One of Respondent's subordinates in the budget office told her that story when it occurred. Thereafter, Respondent compelled that subordinate to relate the story numerous times over the years, particularly to new members of the budget office staff. It was understood by the staff that the story was told as an opportunity for Respondent both to degrade a black employee and to intimidate the new budget office employee. Respondent openly stated to her staff that her boss wanted her to hire a black but that she would never consider having a black in her budget office. On one occasion after her supervisor Larkin told Respondent who then had a vacant budget analyst position that she needed to hire a qualified black applicant, Respondent instructed her subordinates to speed up the screening and interview process before the NAACP came after her and she was required to hire a black. A list of 197 racial, ethnic, and sexual "jokes" was brought into the budget office by an unknown person. Respondent directed a secretary to make copies for everyone in the office. Respondent assembled the staff in the budget office conference room where she instructed the secretary to distribute copies to all present. Thereafter, Respondent sat there with her subordinates while she and they read aloud to each other "jokes" from the list. Most of those present were uncomfortable due to the nature of the "jokes" and considered Respondent's distribution of that list in the office setting to be unprofessional, inappropriate and demeaning. The hiring process for professional positions within the budget office was a two-tiered procedure, depending upon the position and accompanying pay grade. The basic procedure began with a public advertisement for the position with a job description. Upon their receipt, the applications for employment for that position were submitted to Respondent to establish criteria for review during the screening process. The applications were then screened based upon the criteria, narrowing the list for interview purposes. Following the interviews, candidates were ranked in a numerical order from which an individual was selected for that particular position based upon the recommendation of the budget director. The School Board has implemented policy 6Gx6-4011.13 governing employment for positions of pay grade 25 or higher. This policy, known as "target selection," covers administrative and supervisory positions and includes some of the budget analyst positions within the budget office. The screening process was based upon criteria established by Respondent, which culminated in a formal interview process in order to narrow the field to three candidates. The names of those three candidates were then submitted to the superintendent, together with Respondent's recommendation as to which of those candidates should be hired. Respondent's recommendation was followed in every instance. This more stringent screening and interview process was not required for pay grade 24 and below. For those pay grades, Respondent, as the department administrator, developed the job description for the position, developed the criteria for screening applicants, and selected the winning applicant after the interview process. There were a total of 18 budget analyst positions filled within the budget office from December 17, 1981, through April 17, 1990, of which 12 were pay grade 24 and below and, therefore, not subject to the target selection procedure. The employment procedures for all pay grades, however, were governed by equal opportunity and fair employment policies, implemented through personnel policy statements which required fair employment practices. These policies and procedures, along with the applicable state and federal laws governing hiring practices, were fully explained to Respondent by employees in the School Board's personnel department each time Respondent arranged to advertise a vacant position. Respondent's pattern of eliminating applicants identified by her as potentially black individuals spanned her tenure as budget director and included her last hiring of a budget analyst in April of 1990. Respondent directed her subordinates involved in the screening process to eliminate applicants she suspected of being black, utilizing certain information on their applications or resumes. She directed her subordinates to eliminate persons who were born and/or educated in Jamaica or in the West Indies, who attended certain colleges or universities such as Florida A & M and Bethune-Cookman, who had belonged to recognized black fraternities or sororities, or who belonged to certain organizations such as the Black Accountants Association. One applicant was eliminated due to Respondent's stated belief that only black females would play basketball. On one occasion, Respondent expressed the difficulty in eliminating a black applicant who had made it to the interview process. Respondent specifically directed her subordinates who were screening applications to manipulate the criteria when necessary to eliminate black applicants. Sometimes those interviewed were allowed to have a bachelor's degree with a major in accounting or a related field, and sometimes those interviewed were required to have bachelor's degrees with only a major in accounting. Sometimes Respondent would establish a criterion that the applicant's degree must have been received within two years, sometimes three years, sometimes four years, and sometimes there was no "recency" requirement. She directed the elimination of black applicants who held a master's degree in accounting, declaring them to be over-qualified, even though the minimum qualification for the position was a bachelor's degree. On one occasion, she established different minimum educational qualifications for applicants who were already employees of the School Board and applicants who were not, even though the official job description contained no such distinction regarding the type of degree held. In April of 1990, Respondent conducted an informal vote among her staff to select an individual from those who had successfully completed the interview process. The budget office staff voted unanimously for a female who was already employed within the school system because they were familiar with her and believed she would do an excellent job. Respondent rejected the staff's recommendation, however, stating she would hire a different applicant because she needed "to employ a white male in order to keep the salaries up." Respondent also discriminated against black applicants for clerical positions in the budget office. The School Board's personnel department would screen those applicants and administer the proper testing. A list of those who qualified by testing would then be forwarded to Respondent for interviews. Respondent utilized an interview system for clerical applicants whereby each applicant was afforded a 30-minute interview. However, if the applicant "sounded black" on the telephone when the appointment for the interview was being made, then that applicant was only scheduled for a 15-minute interview. Respondent's subordinates involved in the screening and interviewing processes followed Respondent's directives to eliminate suspected black applicants and did not report Respondent's discriminatory tactics to Respondent's superiors. They were fearful of losing their jobs and fearful of other retaliation by Respondent due to her vindictive nature. Respondent on occasion openly bragged about her successful retaliation against other employees who had complained about what she considered simply her management style. She created the impression that she was "untouchable". Respondent was verbally abusive and demeaning to her staff. She referred to them as peons. She told one that he was "an asshole" for working overtime to complete an assignment. She removed the telephones from the offices of her professional staff for making personal phone calls during their lunch hour. She yelled, screamed, and cursed at them. When she wanted an employee to terminate employment, she took away that employee's duties, leaving that employee with nothing to do but feel worthless and isolated from the rest of the staff. The staff often wondered which of them would be Respondent's next target. From June 15 until August 15, 1990, Respondent was on workmen's compensation leave due to a back injury. During her absence, her immediate supervisor, associate superintendent Larkin, became involved in the budget office's day-to-day activities due to the need to prepare for School Board approval the budget for the 1990-91 school year. Several of the staff members became more comfortable with Larkin as they worked together over that summer. They began telling him about the working conditions suffered by the budget office staff under Respondent's leadership. It became clear to Larkin that the morale problems in that office created poor productivity when Respondent was there, a situation that did not exist while Respondent was on workmen's compensation leave. He understood it would be necessary for administrators with authority over Respondent to become involved in resolving the poor working conditions Respondent had created in the budget office. In July of 1990, Larkin told the two senior budget office staff members with whom he had worked most closely that summer that Respondent would be returning to work. They became upset and questioned how Larkin could allow her to return to her position as budget director. During that conversation, they also told Larkin that Respondent discriminated against blacks in the hiring process. Because of the serious nature of that accusation, Larkin told them they would have to document such an allegation in writing before he could commence an investigation. They did not. When Respondent returned to work, William Dandy, the deputy superintendent, met with the entire budget office staff to discuss the morale problems that were affecting productivity in the budget office. Respondent was present, and the staff did not tell Dandy about her discriminatory hiring practices at that meeting. By January 15, 1991, a secretary who had been hired while Respondent was on workmen's compensation leave and whose duties had been taken away from her by Respondent got "fed up" with what she considered an intolerable work environment and announced that she was going to speak to Mr. Larkin. The entire staff, except for one secretary, volunteered to go with her and did. They complained to Larkin about Respondent's interpersonal and management problems. On January 16, 1991, deputy superintendent Dandy contacted several of the budget office staff and asked them individually if they had any knowledge that Respondent had engaged in discrimination in her hiring practices. Each of the individuals admitted to having such knowledge. They subsequently provided written statements to Dandy, who referred those statements to the special investigative unit. The ensuing investigation resulted in the notice of non- renewal of Respondent's annual contract and in the Petition for Dismissal filed in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in the Petition for Dismissal filed against her; Affirming the superintendent's suspension of Respondent; Terminating Respondent from her employment with the Broward County School Board; and Denying Respondent's claims for back pay, benefits, attorney's fees, and costs. DONE and ENTERED this 25th day of October, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 25th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3863 Petitioner's proposed findings of fact numbered 2-5, 8, 9 and 11-33 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 6 and 7 are rejected as being unnecessary to the issues involved herein. Petitioner's proposed finding of fact numbered 10 is rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 1, 34, and 35 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondent's proposed findings of fact numbered 3, 95-97, 108, 128, 129, 140 and 153 are adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 99, 114, 126, 137 and 192 are rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 22, 26, 30, 56 and 75 are rejected as being unnecessary to the issues involved herein. Respondent's proposed findings of fact numbered 138, 147 and 163 are rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1, 4, 5, 9, 33, 34, 37, 45, 52, 54, 57, 59-61, 70-74, 83, 85, 87, 101, 111, 130, 146, 156, 162, 167, 175, 178, 186, 195 and 198 are rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 2, 6-8, 10-21, 23-25, 27-29, 31, 32, 35, 36, 38-44, 46-51, 53, 55, 58, 62-69, 76-82, 84, 86, 88-94, 98, 100, 102-107, 109, 110, 112, 113, 115-125, 127, 131-136, 139, 141-145, 148- 152, 154, 155, 157-161, 164-166, 168-174, 176, 177, 179-185, 187-191, 193, 194, 196, 197, and 199 are rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock, Soloff & Rodriguez, P.A. 1512 East Broward Boulevard, Suite 300 Fort Lauderdale, Florida 33301 Thomas F. Panza, Esquire Jan Marie Kelly, Esquire Panza, Maurer, Maynard, Platow & Neel, P. A. 3081 East Commercial Boulevard, Suite 200 Fort Lauderdale, Florida 33308 Virgil L. Morgan, Superintendent Broward County School Board 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301-3125
The Issue Whether Respondent was properly terminated by Petitioner for just cause or is entitled to reinstatement with back pay and benefits.
Findings Of Fact Respondent is a 48-year-old man who was employed between 1997 and August 15, 2005 (eight years), by Petitioner FAMU. During that period, he had attained permanent status in the classifications of Computer Programmer and Senior Computer Programmer in Petitioner FAMU’s Information Technology (IT) Services Unit. Respondent is a member of an AFSCME union bargaining unit. Petitioner reorganized its IT unit in 2004-2005. As a result, several employees of that unit, including Respondent, were targeted for layoff. FAMU’s standard procedure for advising employees for the first time that they were being laid off was to call them to the personnel office. After returning to work from sick leave on August 15, 2005, Respondent was informed that he was to report to the personnel office that afternoon. Four or five people already had been laid off, and Respondent anticipated that he would be laid off. Indeed, Respondent’s position as a Senior Computer Programmer Analyst had been eliminated as a result of the reorganization, but he did not know this in advance of the August 15, 2005, meeting. With apprehension, Respondent unsuccessfully attempted to secure a union representative to accompany him to the afternoon meeting. He subsequently secured a tape recorder from his home, with the intent of recording the meeting. The meeting turned out to be scheduled in the office of FAMU’s Human Resources Administrator. When Respondent arrived at the meeting location, there were two campus police officers, John Cotton and Audrey Alexander, present. Also in attendance were Dr. Janie Greenleaf, FAMU Human Resources Administrator; Dr. Kenneth Perry, at that time Associate Vice-President and Chief Technology Officer; and Howard Murphy, the IT consultant hired as special assistant to the university president. Mr. Murphy had done the assessment leading to the layoffs, and it was he who had recommended which employees to lay off. The meeting was intended by the administrators as an initial layoff meeting, wherein Respondent would be presented with a letter advising him that he was being laid off as of that date and of his rights under the rules governing layoffs (the Notice of Layoff); he would sign another letter acknowledging that he had received the Notice of Layoff; and any questions he had would be answered by those present. Upon entering Dr. Greenleaf’s office, Respondent was instructed to take a seat, and he did so. Dr. Greenleaf laid a Notice of Layoff (Exhibit P-2), dated August 15, 2005, on a table in front of him. Respondent then removed his tape recorder from an attaché case. This movement appears to have put the other attendees on edge, because terminations, for whatever reason, can turn violent. Respondent then placed the recorder on the table, and announced that he intended to record the meeting. He stated that anyone who did not want to be recorded could leave. Respondent testified that he had assumed that his behavior would cause the administrators to end the meeting and do what they intended to do without any input from him. (TR-74) Instead, Dr. Greenleaf told Respondent that he could not record the meeting because she did not want to be recorded. She told him to turn off his tape recorder. Apparently, Dr. Greenleaf was the only attendee who objected out loud to being taped. Respondent would not turn off his recorder. Respondent believed that he had a right to tape the meeting because of his status as a University Support Personnel Services (USPS) employee. He testified that during his employment with FAMU, he had attended workshops where he had been allowed to record the meeting for accuracy and make his written report to his superiors from the taped record. He also testified that he had recorded “in the open” a conversation with a superior about a promotion. He further testified that he had been in meetings and hearings with an AFSCME union representative when administrative personnel asked them to turn off the recorder and told them when they could turn on the recorder. In these instances, there were apparently “on the record” and “off the record” conversations. (TR 73-74) There is the suggestion in Respondent’s testimony that he believed that, in the absence of a union representative, he was entitled to tape any meeting. More than once in the August 15, 2005, meeting, Respondent stated to the assemblage that he had a right “as USPS” to record the meeting. After reviewing either a statute book or labor union book, Dr. Greenleaf advised everyone present that the meeting could not be recorded without all attendees’ consent. Dr. Greenleaf advised Respondent that he could take notes; have someone present to transcribe the meeting; or have an AFSCME union representative present; but that she did not wish to be recorded. From the evidence as a whole, it appears that Respondent believed that since he could not get a union representative there at that time, his only option was to tape the meeting, but there is no evidence that he requested to reschedule the meeting for a time when he could be accompanied by a union representative. Dr. Greenleaf repeatedly advised Respondent that he could not record the meeting and/or ordered him to turn off his tape recorder. Respondent repeatedly refused to cease taping and repeatedly advised the assemblage that anyone who did not wish to be recorded could leave. At least once, Dr. Greenleaf advised Respondent that his refusal could be construed as insubordination. Apparently, the volume of both Dr. Greenleaf’s and Respondent’s voices became elevated. Respondent’s affect was described by all the witnesses who testified as “defiant,” “agitated,” “adamant,” persistent,” and/or “insistent.” Dr. Greenleaf then interrupted the meeting and asked Respondent to wait outside. Dr. Greenleaf and Dr. Perry consulted and decided that Respondent was being insubordinate. A revised letter dismissing Respondent for insubordination (the Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr. Perry. When he was permitted to return to Dr. Greenleaf’s office, Respondent turned on his tape recorder again. Dr. Greenleaf had removed the original layoff letter from the table and delivered to Respondent the Notice of Dismissal for insubordination, also dated August 15, 2005.3/ Respondent requested a copy of the original Notice of Layoff, and was informed by Dr. Greenleaf that he was now terminated for insubordination and the Notice of Layoff was withdrawn. Respondent was not provided with a copy of the Notice of Layoff. Respondent was ultimately conducted off campus by Officers Cotton and Alexander without further incident. Although Respondent was dismissed from FAMU, effective August 15, 2005, he remained on the University’s payroll through August 29, 2005, approximately two weeks following his dismissal. The Notice of Dismissal retained the two week pay provision that had been part of the Notice of Layoff. Subsequent to his termination by FAMU, Respondent has sought other employment, but has been unsuccessful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order which: Reinstates Respondent in his previous position as of August 15, 2005, and corrects all personnel records to reflect that he was not discharged for insubordination; Provides him with back pay dating from August 29, 2005, to the date of the final order; Provides him with all commensurate employee benefits dating from August 15, 2005, to the date of the final order; and As of the date of the final order, provides him with all layoff rights and entitlements appropriate to his job position and bargaining unit under the layoff procedures applicable at that date. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of August, 2006.
