The Issue This case is presented for consideration based upon a claim by the Petitioner, E. R. Brannon, Sr. against the Respondent, Brevard County Sheriff's Department, contending that the Respondent, by its employment practices, has unlawfully discriminated against the petitioner Brannon related to an alleged handicap, in violation of Subsection 23.167(1)(a), Florida Statutes. In view of this purported violation, Petitioner Brannon requests money damages in the way of back salary payments and benefits, together with attorney's fees, in keeping with Subsection 23.167(13), Florida Statutes. The Petitioner Brannon declines the opportunity for any reinstatement in his former employment with the Brevard Sheriff's Office. In defending against these accusations, the Respondent has plead certain affirmative defenses and contends that its action dismissing the Petitioner Brannon was lawful in view of the provision, Subsection 23.167(8)(a), Florida Statutes, specifically related to the portion of that provision dealing with taking action based upon the need for an absence of a particular handicap as related to a "bona fide occupational qualification reasonably necessary for the performance of the particular employment to which such action or inaction is related."
Findings Of Fact Case History On April 2, 1979, the Petitioner, F. R. Brannon, Sr., executed a form complaint of discrimination with the Petitioner, Florida Commission on Human elations, which challenged his dismissal by the Brevard County Sheriff's Department, which occurred on January 5, 1979. After reviewing the complaint, the Petitioner Commission, by action of September 11, 1980, as filed on September 16, 1980, made its determination of case, i.e., reasonable cause to believe an unlawful employment practice had occurred reference the Brevard County Sheriff's Department's dismissal of the Petitioner Brannon. A separate notice of the determination of cause was forwarded to the complainant Brannon and the Respondent, Brevard County Sheriff's Department, on September 16, 1980. Efforts were then made to reach conciliation between the contesting parties and these efforts were unsuccessful and notification of this failure of conciliation was forwarded by the Commission on October 21, 1980. On November 21, 1980, counsel for the Petitioner Brannon made known his appearance before the Commission through written Notice of Appearance and filed a Petition for Relief on the subject of the aforementioned claim brought by the Petitioner Brannon. By document dated November 25, 1990, and placed on file November 26, 1980, the Commissioners of the Florida Commission on Human Relations were notified of the filing of Brannon's Petition for Relief from alleged unlawful employment practice. Subsequent to that notification, Brannon's Petition was transmitted to the State of Florida, Division of Administrative Hearings for consideration of the claim. This transmittal was made on November 26, 1980, and received by the Division of Administrative Hearings on December 1, 1980. On December 1, 1980, counsel for the Respondent, Brevard County Sheriff's Department, filed its answer to the Petition and statement of affirmative defenses. The Respondent also, by motion of that date, moved to dismiss the Petition. The Motion to Dismiss was denied on December 12, 1980. On December 31 1980, the Respondent, in the person of its former counsel, Charles F. Broome, Esquire, wrote to the Hearing Officer to advise that there had been a change in administration in the Brevard County Sheriff's Office and that the newly elected sheriff wished to have a substitution of counsel. There ensued a series of contacts on the part of this Hearing Officer to establish a hearing date which would accommodate the change in administration and substitution of counsel. After consultation with the parties, the month of March, 1981, was tentatively selected as a time for hearing. This determination was made upon consultation with counsel for the parties, to include Catherine Riley, Esquire, the substituted counsel for the Brevard County Sheriff's Office. The case was subsequently scheduled for hearing on March 9, 1981. Prior to the time for hearing, a letter was written by counsel for the Respondent on January 16, 1981, to advise that one of her witnesses was unable to attend the hearing until after March 30, 1981. By correspondence dated January 22, 1981, in response to the letter of January 16, 1981, which had been addressed to counsel for the Petitioner, counsel for the Petitioner acquiesced in the continuance of the hearing and asked that the matter be set at the first available date beyond March 29, 1981. The correspondence was treated as a motion to continue the case on behalf of the Brevard County Sheriff's office, and the matter was reset for hearing on April 9, 1981. The Respondent, Brevard County Sheriff's Department, had also moved to file an additional affirmative defense, and this motion was granted on February 2, 1981. The initial session of the hearing was held on April 9, 1981, and continued until May 29, 1981, allow the hearing to be concluded. The hearing was concluded on May 29, 1981, and this Recommended Order is being entered after such hearing. In the way of argument, the parties have submitted written memoranda through counsel and have suggested proposed findings of fact, conclusions of law and recommended disposition in this matter. To the extent that those proposals, conclusions and recommendations are consistent with the Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected. Material Facts The Petitioner, E. R. Brannon, Sr., is an individual who was forty- three (43) years of age at the time of the formal hearing. In the course of his adult life he has worked primarily in law enforcement for a period of sixteen (16) to seventeen (17) years, to include service to the Lake City, Florida, police Department; Eau Gallie, Florida, Police Department: Melbourne, Florida, Police Department; two periods of service with the Brevard County, Florida, Sheriff's Office; the Orange County, Florida, Sheriff's Office and the Marion County, Florida, Sheriff's Office. On July 4, 1974, while working for the Marion County Sheriff's Office as a line deputy, the Petitioner Brannon was shot in his left side and left hand in an attempt to apprehend a felon. He was given a period of convalescence by his employer and then returned as an investigator for the Marion County Sheriff's Office. In September, 1976, after being returned to duty, the condition in his left hand was exacerbated by another job related injury, leading to the eventual amputation of his left hand on November 9, 1980, after the hand had become gangrenous. This final treatment intervention followed a series of approximately twenty (20) operations over the period of time following the initial gunshot wound. The Petitioner Brannon left his employment with Marion County and in January of 1977, took employment with the Brevard County Sheriff's Office where he was hired as a Lieutenant in charge of the division dealing with communications and vehicle maintenance. At all pertinent times to this inquiry, his employer, the Brevard County Sheriff's Office, was an employer with fifteen (15) or more persons working for that entity, for a period of twenty (20) weeks or more during the year. While Brannon was working for the Brevard County Sheriff's Office, he was placed in the position of Captain, awaiting pay adjustment to that grade. At the time of his dismissal from the Brevard County Sheriff's Office on January 5, 1979, he was receiving a salary of approximately $1,260.00 per month, with an additional $175.77 per month contributed for the benefit of his retirement. While serving as the Division Commander of the Communications and Maintenance Unit of the Brevard County Sheriff's Office, Brannon had as many as thirty (30) persons under his supervision. Brannon bad been hired by Sheriff Ronald W. Zimmerman and worked for that individual until September, 1978, when Zimmerman was suspended. Following Zimmerman's suspension from September, 1978, until January 5, 1979, the date of his discharge, Brannon worked for Sheriff David U. Strawn. During the course of Brannon's service under the command of Sheriff Strawn, the problem with Brannon's hand caused him mild to severe pain and led to frequent usage of Demerol and Vistaril to accommodate this problem. Although the visits were not made during working hours per se, Brannon made numerous visits to a local hospital during the September, 1978, to January 5, 1979, time frame, for purposes of treatment. The degree of his discomfort and the effect on Brannon was such that by January 30, 1979, his treating physician, Dr. Maurice Hodge, was of the opinion that Brannon was "totally disabled because he is unable [sic] to use his hand for any gainful purpose. See Petitioner's Exhibit No. 6, admitted into evidence and attachment identified as Respondent's No. 1. Notwithstanding the physical discomfort, Brannon attempted to perform his role as Deputy Sheriff and supervisor; however, there were numerous absences from duty during the time of the Strawn administration, to include a period December 18, 1978, through December 30, 1978. All of these absences were accounted for as authorized holidays, annual leave or sick leave. James H. Garvin, presently a Captain in the Brevard County Sheriff's Office, in the position of Jail Supervisor, was emoloyed with that Sheriff's Office during Sheriff Strawn's tenure. At that time, his office in the Sheriff's complex building was located adjacent to that of Brannon and to the extent that the two officers had contact, Garvin did not have difficulty with work coordination involving Brannon. Other officers who had association with Brannon during the time of Strawn's service as Sheriff, included Johnny L. Manis, who was a Captain in 1978, in the Brevard County Sheriff's Office. The communication section was included in his area of responsibility and upon Brannon's dismissal, Manis took over the responsibilities which Brannon had fulfilled in the communications section. Upon taking over, Captain, now Lieutenant, Manis, found the morale in that section to be less than acceptable and the turnover rate to be, in his estimation, excessive. Captain Charles Tenvooren who served as a Major in the Strawn administration, had supervisory responsibility for Brannon in that time period and recalls that Brannon was in the hospital at times. Tenvooren knew that Brannon was being treated for the condition related to his arm and hand and observed impairment in Brannon's job function. As supervisor, he spoke with Sheriff Strawn about the medication that Brannon was taking. Tenvooren also spoke with Brannon about the problem of impairment related to the injury to the arm, as described by the witness Tenvooren. Brannon, in talking with Tenvooren, mentioned the pain which he was experiencing. Lieutenant Harmon B. Wisby testified in the course of the hearing. When Strawn was Sheriff, Lieutenant Wisby was the coordinator of the reserve auxiliary group of the Sheriff's Department. During that time sequence, Wisby was aware of the fact that Brannon was under medication, information he gained from conversations he had with Brannon. Brannon indicated ythat he was having pain and that he was to go back to the hospital. Brannon also indicated to Wisby that he had been given medication to assist him in coping with the pain. Wisby recalls several times when Brannon did not seem aware of his surroundings while he was in the office building, in that Brannon would not respond to him when spoken to in the form of a greeting. Alice Alderman who is a Communications Officer with the Brevard County Sheriff's Office, who worked in the communications section while Brannon was supervisor during the Strawn administration, testified at the hearing. She admits that she had a personality conflict with Brannon. Nonetheless, she testified that during this time sequence he seemed to be "distant." Another employee within the communications section who testified at the hearing was Debbie Walden who was a Communications Dispatcher in the Brevard Sheriff's Office at the time that Strawn was Sheriff. Brannon was her shift supervisor and she recalls numerous absences by Brannon, who from her recollection worked on the same shift on which she was employed. She also indicated that morale was a problem at the time that Brannon was in charge of the section. On January 5, 1979, through correspondence, Sheriff Strawn dismissed Brannon. A copy of the dismissal may be found as Petitioner's Exhibit No. 5, admitted into evidence. In the course of the hearing, Strawn indicated that his decision to dismiss no basis for the correspondence was premised on evidence gained from other personnel in the Sheriff's Office; the medical reports pertaining to the Petitioner's physical condition related to his hand; the prognosis on that condition; the uses of pain medication; a few personal observations of the Petitioner in which Strawn felt the Petitioner to be "spacey"; the belief that the Petitioner was not capable of line duty, i.e., responsibilities as an armed deputy; the problem which Brannon appeared to have approaching his job with a "clear head"; the high turnover in the communications section, indicating a problem with management by Brannon; a property control problem related to equipment which Brannon had in his charge and Brannon's lack of ability as an administrator and supervisor. All of Strawn's background reasons and observations were an accurate depiction of the circumstance with the exception that there was insufficient proof in the course of the hearing to demonstrate that Brannon had acted inappropriately on the subject of property control of equipment in the communications section. Likewise, reported observations by coworkers are correct. In particular, the use of pain medication for the handicap related to the injured arm and hand was such that Brannon was incapable of performing the duty of a line officer charged with the direct protection of the public and the possibility of use of force to effect that purpose. This medication also compounded Brannon's problems as an administrator. When the dismissal letter was drafted, the prime focus of that letter was to the effect that the Sheriff's Office was concerned about Brannon's return to employment duties because of the belief by the Department that there would be exposure for liability in terms of workmen's Compensation claims by Brannon, in that the Sheriff's office believed that they would be entirely liable for physical disability if Brannon suffered an "industrial accident" while acting in the scope and capacity of his position within the Department. In further explanation, it was stated that the Department believed the health circumstance of Brannon was intense in view of the pain and associated use of special medications. For these reasons, Strawn was concerned that any negligent act by Brannon could result in liability for the Department, apparently from claims by third parties. The letter of dismissal went on to say that his duties were not being performed as well as expected because of Brannon's physical condition and the necessity for taking drugs to cope with those problems and further concern for fellow officers and members of the public. This statement can be related to Brannon's potential abilities as a lane officer and his primary function as supervisor of the communications and maintenance section. (Notwithstanding the fact that Brannon was not serving on a day-to-day capacity as a line officer, as a Deputy Sheriff he could reasonably be expected to be pressed into service in the eventuality of some emergency which called upon all appointees within the Sheriff's Office who are deputies to serve in that capacity, and as Brannon himself stated at the hearing, Sheriff's deputies are technically on duty twenty-four (24) hours a day.) Finally, the impression was created in the hearing process that the Strawn administration had been concerned about Brannon's absenteeism and morale in his section. Although this is not expressly stated in the letter of dismissal, the facts presented in evidence bear out the contention that Brannon was absent an inordinate number of times, notwithstanding the fact that the absences were taken under legitimate leave principles, and there were problems related to morale in the communications section. In addressing Strawn's worries, there was no procedure undertaken for formal evaluation of Brannon's performance. Sheriff Strawn did discuss Brannon's physical condition with him and what the Sheriff perceived to be a problem with the communications equipment inventory control system. On January 8, 1979, Brannon began to look for alternative employment and gained such employment with the Brevard County Public Safety Division, within the Brevard County Board of County Commissioners on march 26, 1979, and was employed by them until January 14, 1981. During the course of his employment, he received $16,812.40 in gross earnings, and was provided life insurance commensurate with his annual salary, as well as health insurance. In addition, this employer "paid-in" at the rate of 9.1 percent of annual salary, into a retirement system. This payment to the retirement system was not made during leave without pay between July 1, 1980, and August, 1980. Following his employment with the Brevard Counts' Public Safety Division, Brannon worked for the Sheriff of Lake County, Florida, eighteen (18) to twenty (20) days, a month maximum. Following Brannon's dismissal from the Brevard County Sheriff's Office, he also requested social security disability benefits in the summer of 1980, and that claim is now pending.
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Petitioner is a 33-year-old female residing in Lake City, Florida. Petitioner has three children, ages 19, 16, and and 12, from her first marriage. Her first husband is deceased. Petitioner was remarried in April 2015. Petitioner and her husband live with, and care for, her three children, as well as two young grandchildren and her seven-year-old niece. Between November 2015 and September 2016, Petitioner was employed at CARC, a residential group home licensed by the Agency.1/ Petitioner provided personal care to the residents, as well as transportation for the residents to doctor’s appointments, shopping, and occasionally to cash their personal checks. In her capacity with the group home, Petitioner had access to and responsibility for the group home van, as well as the corporate credit card for purchasing gasoline. Since being disqualified from employment serving Agency clients, Petitioner has been employed at “Still Waters,” a residential nursing home facility. She works 12-hour shifts, four days on, three days off. Petitioner testified that the hours make it too difficult to care for her children, grandchildren, and niece. Petitioner wishes to return to her employment in the group home as a direct service provider to clients of the Agency. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offense On May 23, 2005, Petitioner was arrested for forgery and grand theft, stemming from having cashed a forged check. The check was written for $391.83, payable to a third party and cashed by Petitioner at her bank. Petitioner pled guilty to both charges, which are third- degree felonies. In August 2005, the court withheld adjudication, ordered Petitioner to complete two years’ probation, and entered a final judgment for fines and costs in the amount of $373. Petitioner’s fines and costs were later converted to community service hours, which she completed. Petitioner was also required to pay restitution to the bank, which she satisfied. Petitioner completed probation timely on August 22, 2007. Petitioner was 21 years old at the time of the disqualifying offense. The details are sketchy. Neither Petitioner’s testimony nor her exemption questionnaire provide much of an explanation. The explanation in Petitioner’s exemption questionnaire indicates that a friend gave her a check from the friend’s employer, and Petitioner cashed it at Petitioner’s bank and kept the cash. She explained that she was young and dumb and did not know better. Petitioner’s testimony was brief, stating that she had been hanging around with the wrong crowd, and that a friend got a check from McDonald’s which Petitioner deposited in her own account. In the questionnaire, Petitioner indicated no one else was involved in the crime because “I did not tell on my friend.” She answered “n/a” to questions regarding the degree of harm to the victim or property (permanent or temporary), as well as whether there were any stressors in her life at the time of the disqualifying offense. When prompted in the questionnaire to provide any additional comments, Petitioner explained that she knew what she did was wrong; that she does not get in trouble any more; that she has three kids, and only has time to go to work, church, and home; and that she wants to take care of “my people,” which she enjoys. Subsequent Non-Disqualifying Offenses The Agency’s Exemption Review Summary lists two2/ non- disqualifying offenses subsequent to Petitioner’s disqualifying offense.3/ In March 2006, Petitioner was arrested for, and adjudicated guilty of, passing a worthless check to Publix in the amount of $76. On June 8, 2006, Petitioner was ordered to complete 12 months’ probation and pay restitution, court fines, and fees in the amount of $329. Petitioner’s probation was terminated on June 4, 2007, having satisfied all terms thereof. Petitioner wrote the check to Publix on October 3, 2005. Petitioner was 21 years old, caring for her seven-year- old, four-year-old, and infant children, and her husband was incarcerated. Petitioner testified, both in her questionnaire and at final hearing, that she wrote the check knowing she did not have the money to cover it because she needed food for her children and diapers for the baby. On February 20, 2012, Petitioner was charged with leaving the scene of a traffic accident. On March 15, 2012, Petitioner was adjudicated guilty and placed on six months’ probation, ordered to complete an eight-hour driver improvement course, and pay court costs and fines in the amount of $416. Petitioner was released from probation on August 14, 2012, having satisfied all probation conditions. Petitioner was 28 years old at the time of the incident. Petitioner was driving with a friend as a passenger, when she crashed her car in a ditch. Petitioner left her car in the ditch and contacted another friend to give them a ride home. The following day, the police came to her home and charged her with leaving the scene of an accident. Petitioner testified that she left the scene because she had no insurance, and that it was late and dark. No evidence was introduced to support a finding that any other vehicle was involved in the accident, or that the accident resulted in any property damage or injury. Educational and Employment History Petitioner graduated from high school in 2002. Petitioner completed the educational requirements to become a Certified Nursing Assistant (CNA) at Lake City Community College in 2004. However, Petitioner has not passed the written state board exam to become certified. Petitioner lists no employment history prior to 2011, although there is some evidence that she worked as a caregiver at a “cluster home” in Lake City in 2005. Petitioner worked as a caregiver in a group home known as “Open Heart” from January 2011 to October 2014. Petitioner was subsequently employed as a housekeeper with Holiday Inn in Lake City from February to November 2015. Petitioner left Holiday Inn to become a caregiver at CARC in November 2015. As noted previously, subsequent to Petitioner’s disqualification, she has been employed at a nursing home facility. Subsequent Personal History Petitioner divorced her first husband in 2014 and he is now deceased. Petitioner has full custody of all three of her children and has taken on the responsibility of her 19-year-old daughter’s two children, as well as her seven-year-old niece. In April 2015, Petitioner married her current husband Octavius, who is a 13-year employee of Red Lobster. Petitioner is active in her church where she sings in the choir, attends Tuesday night bible study and Wednesday night worship, and has her niece involved in a praise dance for children program on Saturdays. One of Petitioner’s sons is disabled. Petitioner reports that both sons play football and that she is, or has been, a team mom for the football team. Petitioner’s Exemption Request Petitioner’s exemption questionnaire is bereft of details. Most questions are answered in just a few words or are answered as “not applicable.”4/ Petitioner expresses remorse for her disqualifying and non-disqualifying offenses. However, it is not entirely clear that Petitioner understands the ramifications of her forgery offense, since she indicated there was no harm done by her passing of a forged check. Petitioner submitted five personal letters of reference with her exemption application. One is from one of her sons, another from a friend at church, and the remaining letters are from former co-workers at care-giving agencies. Each attests to her compassion for disabled persons and her sincerity in the care of those persons. Petitioner did not submit any letter of reference from a current or former employer or another individual in a position of authority. Petitioner did not offer any witness testimony or additional letters of reference at the final hearing. Ultimate Facts Petitioner’s recent employment history evidences her work ethic and emphasizes a passion for serving persons with disabilities. Petitioner’s personal references support a finding that she is committed to family and community, and has a heart for service. However, Petitioner’s disqualifying offense, and at least one of the subsequent non-disqualifying offenses, involves attempts to attain money to care for her family when times were tough. Petitioner’s failure to describe any stressors in her life at the time, and to clearly distinguish her circumstances at present, substantiates the Agency’s reticence to allow Petitioner to work with the most vulnerable clients. Petitioner has more dependents at present than she did when the disqualifying offenses occurred. The record contains few details of how her situation differs today from the past.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 11th day of July, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 11th day of July, 2017.
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1992, a Florida- certified nursing assistant (CNA). She presently works part-time as a CNA for Quality Care Nursing Services, Inc., and is attending school (Sheridan Vocational School) to become a licensed practical nurse. In August of 1994, Petitioner was the owner/administrator of Arianism Home, an Adult Congregate Living Facility,3 located at her residence at 741 Northeast 177th Street in Miami, Florida (Petitioner's ACLF). She had a standard license issued by Respondent to operate her ACLF. The license had an effective date of March 20, 1994, and an expiration date of March 19, 1996. It allowed her to house a maximum of six residents at the facility at any one time. At the time (August of 1994), Petitioner shared her residence with her then 18-year-old daughter, Demetri Kinchen, and Ms. Kinchen's two young children. Ms. Kinchen helped Petitioner operate the ACLF. Also assisting Petitioner was a paid employee, Larome Hall, who, in August of 1994, was 21 years of age. Petitioner also owned the residential structure and property located adjacent to her ACLF (at 751 Northeast 177th Street). During the period that her license was in effect, Petitioner had at least six residents at her ACLF at all times. The residents suffered from mental disorders and received social security disability income and optional state supplementation (OSS) benefits. Although Petitioner had a standard license and not a limited mental health license, she received payments from the state (OSS payments) for these residents (notwithstanding that a limited mental health license was required in order to receive such payments for these residents). Because of their mental illness, the residents of Petitioner's ACLF needed to be supervised 24 hours a day, seven days a week. On August 8, 1994, a neighbor of Petitioner's reported to the Department of Health and Rehabilitative Services (HRS) that the residents of Petitioner's ACLF were receiving inadequate supervision. According to the reporter, residents of the ACLF had knocked on the reporter's door "many times" during the day and "as late as 10:00 or 11:00 p.m.," and, the day before, one resident, S. K., came to the reporter's door "bleeding from both legs, her elbow and her face" and told the reporter that she (S. K.) had been "hit by a car." At the time of the accident, Petitioner was away from the facility. She had gone shopping, leaving the task of supervising the residents to Ms. Kinchen and Mr. Hall, neither of whom, it appears, had received the requisite training to fulfill this responsibility.4 The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-073142) and investigated by Jeanette Henad, a protective services investigator for HRS. As part of her investigation, Ms. Henad visited Petitioner's ACLF and conducted several interviews. In the written "investigative decision summary" (IDS) Ms. Henad prepared following the conclusion of her investigation, she described, as follows, the "observations" she made during her visit: All residents were interviewed, 7 clients in 751 NE 177th Street and 4 clients in 741 [NE 177th Street] as follows: S. K.; C. W.; T. M.; and L. S. The four above stated clients were found in 741. Daughter of Cynthia Lee, Demetri[] [Kinchen] and Demetri's 2 month old baby w[ere] located in 751. There was no one available in 741. In 751 the home had a lock on the refrigerator and lunch was observed, but the lunch was not what was posted on the menu. Medication book was observed but the last medication entry was for 8/2/94 and it was now 8/9/94. Home met minimal standards of cleanliness and there was food available for human consumption. . . . . Ms. Henad's IDS reflected that Ms. Kinchen had made the following "statements" when interviewed: My mother is not here right now; 2) I am taking care of the clients; 3) Most of the clients from 741 come over here during the day. Most of the clients come and go as they please; 4) Larome Hall administers the medications but he is not here right now. He administers the meds twice a day; 5) All of the clients like it here. We get our clients from Locktown, and other agencies; 6) I know that the medications have been given. I do not know why the med book is not updated; 7) If clients refuse to take their medications, it is noted and client's physician is notified; 8) The clients take care of themselves. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified. Although no harm came to any individual involved, technically according to the alleg. matrix, neglect due to lack of supervision must be verified. Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 073142 was classified as confirmed, with Petitioner named as the perpetrator. On August 17, 1994, HRS received a second report of inadequate supervision at Petitioner's ACLF. This report was from an employee of Respondent's Quality Assurance and Licensing unit, who advised that there were four mentally ill "clients" of Petitioner in the residential structure located on the property adjacent to the ACLF (at 751 Northeast 177th Street) and that these clients were "not being supervised." According to the reporter, Ms. Kinchen, along with her two children, were "next door" at 741 Northeast 177th Street. Petitioner, once again, had gone shopping and was not present at either the 741 Northeast 177th Street location or the 751 Northeast 177th Street location. The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-076483). Ms. Henad was delegated the task of investigating this report as well. As part of her investigation, she paid a return visit to the facility and, as she had done as part of her earlier investigation, conducted several interviews. In the IDS she prepared following the conclusion of her investigation of this second report, Ms. Henad described, as follows, the "observations" she made during her return visit to the facility: All four clients were observed in the home located next to the ACLF which is licensed. Cynthia Lee escorted [the protective investigator] to the location of 741 NE 177th Street. Home was clean, and clients appeared appropriately dressed. Clients assessed level of risk is intermediate due to the lack of supervision. . . . Ms. Henad's IDS reflected that Petitioner had made the following "statements" when interviewed: The clients usually come to 751; 2) Larome Hall is sometimes with them; 3) The clients are allowed to come and go as they please; 4) I usually am in 751 but I check on the clients on a regular basis; 5) The clients have been with me for a long time and I take good care of them; 6) 741 is not licensed but I have applied for a license;5 7) I am licensed for 76 but I have 10 clients; 8) I get my clients from Locktown and other mental facilities. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified; 3) Unsupervised caretaker present: Verified; although no harm came to any individual involved, according to the allegation matrix, due to lack of supervision, must be verified; . . . Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 076483 was classified as confirmed, with Petitioner named as the perpetrator. Petitioner's license to operate her ACLF expired on March 19, 1996. Her application to renew her license was denied because of the two confirmed reports of adult neglect (FPSS Report Number 94-073142 and FPSS Report Number 94-076483) in which she had been named the perpetrator.7 Petitioner has nonetheless continued to operate her ACLF. In August of 1998, Petitioner was arrested and charged, in Dade County Circuit Case Number F98029861, with operating a nursing facility without a license. On October 22, 1998, she pled no contest to the charge and was placed on probation for two years and ordered to pay $1,000.00 to the Adult Emergency Trust Fund. Adjudication of guilt was withheld. While Petitioner may be "of good moral character" and "not represent a danger to the health, safety, and welfare of the patients while working as a CNA" (as Respondent has determined, as reflected in its May 25, 1999, letter to Petitioner8), it has not been demonstrated that, subsequent to the incidents described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483, Petitioner has taken any measures (such as undergoing additional training related to the operation and maintenance of an Assisted Living Facility) designed to make her a better educated and more responsible Assisted Living Facility administrator who can be counted on to discharge the supervisory responsibilities of that position in a manner that does not place residents at risk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's request that she be granted an exemption that would allow her to be employed as an Assisted Living Facility administrator. DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 12th day of May, 2000.
