Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black female, was hired by Respondent on May 2, 1978. Petitioner was employed as a psychiatric aide until June 12, 1981. From June 13, 1981 until Petitioner's dismissal by Respondent on October 17, 1985, her primary duties consisted of working with severely mentally ill patients as a Human Services Worker II at Northeast Florida State Hospital in Macclenny, Florida. At all times material to this proceeding, Petitioner was a permanent employee of Respondent. Petitioner's immediate supervisor at the time of the incident was Dan Gibbs, a black male. On September 2, 1985, Petitioner volunteered to work a consecutive eight (8) hour shift from 11:00 p.m. on September 2, 1985 until 7:00 a.m. on September 3, 1925. Petitioner's primary duty was to observe A. G., a suicidal patient, on a one-on-one procedure throughout the entire shift. The one-on-one procedure requires the observer to remain within arms reach of the assigned patient at all times without interruption. At approximately 2:30 a.m. on September 3, 1985, Emma Jordan, a white female registered nurse and Geri Knowles, a white female security officer, found the Petitioner asleep in the T.V. Room of Ward Nine (9) with her feet propped up on a chair, a pillow behind her back and a cover over her. Petitioner's co- worker, Freddy Jones, a probationary employee, was also found sleeping and was subsequently terminated by Respondent for sleeping on the job. Two patients, including A. G., were also asleep. A. G., the patient assigned to Petitioner for a one-on-one procedure, was no less than ten (10) feet from Petitioner. Ten (10) feet is more than arms length. There was sufficient light from the nurses' station and the television for Jordan and Knowles to determine that Petitioner was asleep. Jordan and Knowles observed Petitioner sleeping for about two (2) minutes before she was awakened by Jordan. After Petitioner was awakened, Jordan, whose duties included caring for patients on Ward Nine (9), questioned Petitioner about who was responsible for carrying out the one-on- one procedure and was informed by Petitioner that both she and Freddy Jones took turns. When Jordan attempted to explain the safety violation, Petitioner responded with "you ain't my supervisor, mother fucker." From this point, the exchange between Petitioner and Jordan escalated with Petitioner using more obscenities and making actual physical contact with Jordan. Additionally, Petitioner encouraged Jordan to "Fight like a woman, mother fucker." Both Dan Gibbs and Freddy Jones had to intercede and physically restrain Petitioner on two (2) occasions. Petitioner had previously been suspended for three (3) days in August, 1982 for sleeping while on duty. Prior to this incident, Petitioner was aware of Respondent's personnel policy concerning disciplinary action for sleeping on the job. Respondent's disciplinary rule provides for a "written reprimand or up to thirty days suspension or dismissal" for sleeping on the job. With each subsequent occurrence of the same violation, the rule imposes a more severe discipline. A predetermination hearing was held by Respondent on September 26, 1985 and Petitioner was subsequently discharged by Respondent on October 17, 1985 for sleeping on the job and malicious use of profane language. The evidence in the record does not reflect a similar instance where an employee (black or white) had been accused and disciplined for sleeping on the job while observing a patient on a one-on-one basis and exhibiting conduct such as the Petitioner exhibited in this instance. Respondent's hospital had, prior to September 3, 1985, suspended both black and white employees for sleeping on duty and subsequent to this incident dismissed a white male employee for sleeping on duty while assigned to a one-on- one supervision of a patient. There was no evidence to support Petitioner's contention that her termination was "retaliation" by Respondent because she had successfully challenged an earlier termination by Respondent for abandonment of position. The evidence clearly established that Respondent reinstated Petitioner after receiving additional information from Petitioner without the matter going to hearing. The evidence clearly establishes that Petitioner was discharged because she was found sleeping on the job while assigned to a suicidal patient on a one-on-one basis and for use of malicious profane language. The evidence clearly establishes that Respondent's actions were not inconsistent with previous disciplinary actions taken against other employees, both black and white, with similar offenses. There was insufficient evidence to show that Respondent's actions taken in discharging Petitioner were motivated by impermissible racial consideration.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Joann Postell has failed to establish that she was discharged due to her race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 12th day of August, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2391 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.(a)(b) That Petitioner was employed by Respondent and terminated for sleeping on the job is adopted in Findings of Fact 1 and 13. The balance of the introductory sentence is rejected as not being a finding of fact but that Petitioner's argument that her dismissal was discriminatory. Rejected as not stating a fact but only why Petitioner denied being asleep. Adopted in substance in Finding of Fact 15. 2. Rejected as being argument rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. 5. Adopted in Finding of Facts 4 and 6. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 9. 8. Adopted in Finding of Fact 3. 9. Adopted in Finding of Fact 14. 10. Adopted in Finding of Fact 15. 11. Adopted in Finding of Fact 16. 12. Adopted in Finding of Fact 17. 13. Adopted in Finding of Fact 1a. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 David A. West, Esquire Legal Counsel Northeast Florida State Hospital Macclenny, Florida 32063 Carl G. Swanson, Esquire 335 East Bay Street Jacksonville, Florida 32202 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations (FCHR) does not make a "cause" or "no cause" determination, as provided in Section 760.11(3), Florida Statutes, but rather issues a Notice of Dismissal, pursuant to Section 760.11(8), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(6), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if Petitioner fails to name Respondent in the Petition for Relief filed with the FCHR, as required by Section 760.11(1), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Manuel Pedraza in DOAH Case No. 02-0237, and FCHR Case No. 99-0849, for failure to timely file his Petition for Relief and for failure to properly name Respondent in the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE 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 21st day of June, 2002. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A. 2532 Garden Street Titusville, Florida 32796 W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius, LLP 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Is Petitioner lawfully entitled to work in a position of trust in an assisted living facility licensed by the State of Florida.
Findings Of Fact The Department is the state agency responsible for receiving, evaluating, and approving or denying applications for exemptions from disqualification to hold a position of trust, with regard to certain assisted living facilities. Petitioner worked in one of Ms. Weaver's assisted living facilities for a short period in late 2000. Ms. Weaver's facilities were licensed by the Department. Petitioner was required to undergo Level 2 screening pursuant to Section 435.04, Florida Statutes, in order to hold a position of trust in the facility. The screening revealed, among other things, that Petitioner entered a plea of nolo contendere on October 17, 1994, to theft of a firearm, pursuant to Section 812.014(2)(c)3 (1993), Florida Statutes, and carrying a concealed firearm, pursuant to Section 790.01, Florida Statutes. Both of these offenses are third degree felonies. Adjudication was withheld and he was sentenced to three years probation. On March 7, 1996, Petitioner was arrested on a charge of aggravated battery with a firearm and discharge of a firearm within the city limits, in violation of a city ordinance. These allegations were not prosecuted. Petitioner asserted that the incident of March 7, 1996, occurred as a result of a dispute with his brother and stated that he did not assault anyone. Petitioner further stated that it was not he who discharged a firearm within the city limits. Petitioner's version of the events of March 7, 1996, was not rebutted and his testimony in this regard is considered to be factual. Petitioner entered a plea of nolo contendere, on December 23, 1996, to domestic battery, a felony, pursuant to Section 784.03(2), Florida Statutes. He was adjudicated guilty. Petitioner's previously imposed probation was extended for a year as a result. Petitioner asserted that the incident which occurred on December 23, 1996, was occasioned as the result of a dispute with the mother of his children. The dispute concerned his children. He is not married to the mother of his children. Petitioner stated that he was angry and that he grabbed the woman's arm but that he did not hurt her. He stated that the woman complained to the law enforcement authorities with the result that he was thereafter arrested. This version of the events which transpired were not rebutted and his testimony in this regard is considered to be factual. Petitioner successfully completed his probation. During his probation he attended an anger management class. Pursuant to an invitation by Ms. Ware, his probation officer, he gave a presentation on anger management to a class in Tampa. During the time Petitioner worked in Ms. Weaver's facility he was in charge of bookkeeping and helped with the clients of the facility. He helped clients learn skills such as tying their shoes. The clients with whom he interacted were classified from level one to level six. Those that are classified as level four to level six are severely retarded. Those classified as level one to level three are less retarded. Petitioner enjoyed working with the facility's clients. He noted that they appreciated the attention that he gave to them. During the short time that Petitioner worked at the facility, someone filed an allegation to the effect that a client had been abused. Petitioner stated that Ms. Weaver was having a physical confrontation with a client and that he got involved in order to ensure that neither the client nor Ms. Weaver received injuries. Petitioner was not charged as a result of this incident and no evidence was presented which indicated that he engaged in unacceptable conduct. Petitioner currently attends Tallahassee Community College. He has been a student there for a year and a semester. He has not received his grades for the current semester at the time of the hearing but so far he has attained a 3.8 grade point average. He was on the dean's list. He is studying business and psychology. When he completes his associate of arts degree he plans to attend either Florida State University or the University of Central Florida. Petitioner's purpose in studying psychology is to gain the skills he needs to work in Ms. Weaver's assisted living facilities. He wants to eventually run the assisted living facility with Ms. Weaver and to open up more facilities. Petitioner has been licensed as a cosmetologist for five years. He currently works at Clipper's Hair Fashions in Tallahassee and manages a staff of 15 persons. Petitioner testified that he believed that he had been rehabilitated and that he had "learned his lesson." Curtiss D. Robbins, who serves as Chief of Police of Howey-in-the Hills, Florida, stated that he had previously been a deputy sheriff in Lake County and that he had become Petitioner's friend subsequent to the three incidents in which Petitioner ran afoul of law enforcement authorities. Chief Robbins opined that Petitioner was a fine young man. Petitioner had discussed with Chief Robbins his interest in working with mentally handicapped persons. Chief Robbins said that Petitioner was a patient person and that he had never observed him become angry. He described Petitioner as being honest, open, and respectful. He said that Petitioner attended church and that he had observed him interact with Petitioner's children and with his own children. Marland Bluhm is employed by the Department. He has a master's degree in psychology and had done post-masters work. He has worked in the field of mental retardation for over 45 years. Mr. Bluhm sat on a three-person committee appointed by the Department to review Petitioner's application for an exemption. Mr. Bluhm stated that the Petitioner appeared before this committee. He stated that he believed that it would be best to administer a Minnesota Multi-phasic Personality Inventory (MMPI) to determine Petitioner's fitness for working in an assisted living facility. However, he joined the rest of the committee in recommending to their superiors that an exemption be granted. Mr. Bluhm also said that working with mentally ill and mentally retarded persons required specific skills. He noted that mentally retarded persons could exhibit aberrant behavior and could try the patience of staff who were charged with taking care of them. He testified that the Petitioner was not a "fit," in his opinion. As noted before, the results of an MMPI could change his opinion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Petitioner to be qualified to work in an assisted living facility licensed by Respondent. DONE AND ENTERED this 6th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 6th day of March, 2002. COPIES FURNISHED: Candace A. Hawthorne, Esquire 319 East Main Street Tavares, Florida 32778 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact On April 24, 1992, the Respondent issued a Request for Proposals (RFP) pertaining to the provision of housekeeping services at South Florida State Hospital. Petitioner and Intervenor submitted responses to the RFP. After all responses were received, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee recommended that Intervenor be awarded the contract. Petitioner's response was ranked by the evaluation committee as the second best response. Following the publication of the results of the evaluation committee, Petitioner filed a bid protest and asserted several grounds in support of its protest. At the formal hearing, the Petitioner abandoned all grounds except for the assertion that Intervenor had failed to disclose as a part of its financial information the existence of a tax lien. Petitioner asserted that the failure to disclose the tax lien should result in either the contract being awarded to it or the return of the matter to the evaluation committee for reevaluation. A Notice of Tax Lien was filed by the Florida Department of Labor and Employment Security for unpaid unemployment compensation taxes and was in the amount of $1,900.00. Intervenor paid the amounts secured by the said lien on May 12, 1992, which was before the responses were due to the RFP on June 5, 1992. The RFP requires certain financial information of the bidders, but it does not require bidders to list tax liens that may have been filed against it. There is no evidence that Intervenor failed to provide the financial information required by the RFP or that the information was inaccurate or incomplete. Petitioner failed to establish that the existence of this tax lien would have had any bearing on the evaluation of the responses. There was no evidence that Intervenor gained an unfair advantage over Petitioner or any other bidder by failing to disclose this tax lien in its response to the RFP. There was no evidence that Intervenor acted in bad faith or that it tried to misrepresent its financial condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses Petitioner's bid protest. DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 8th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4310BID The Petitioner did not file a post-hearing submittal. The proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order. The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 8, 9, 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 13 are rejected as being unsubstantiated by the evidence. The testimony of Ms. Diaz as to whether the amount of the tax lien was included in this figure was equivocal. The proposed findings of fact in paragraph 18 are rejected as being unnecessary to the conclusions reached. When the Department of Labor and Employment Security satisfied the lien of record is not relevant to the issues presented by this matter. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the findings made. COPIES FURNISHED: Gerry Gordon, Esquire 1413 South Howard Avenue Suite 202 Tampa, Florida 33606 Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue Miami, Florida 33131 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Charles W. Leverson, Sr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request principally on the ground that Petitioner had minimized or denied the gravity of his disqualifying offenses. Petitioner is now barred from doing such work because of disqualifying offenses which occurred on December 16, 1990, and March 24, 1992. On the first date, Petitioner was arrested for the offense of aggrevated battery on his wife, a misdemeanor under Section 784.04, Florida Statutes (1990). On the second date, Petitioner was again arrested for five offenses, including battery on his wife in violation of Section 784.03, Florida Statutes (1991). As to the first charge, on January 26, 1993, Petitioner entered a plea of nolo contendere to the charge of battery and was placed on one year's supervised probation. He was also required to "[s]pend 15 weekends in the county jail." In addition, Petitioner was ordered "not [to] possess or consume any alcohol during the term of [his] probation," and to "[c]ontinue with counseling" (of an undisclosed nature). As to the second charge, Petitioner was found guilty by a jury on July 24, 1992, of committing battery on his wife in violation of Section 784.03, Florida Statutes. A "not guilty" verdict was entered as to the remaining four charges. The record does not indicate the sentence, if any, that he received for this offense. Petitioner successfully completed all terms of his probation. Since his arrest in March 1992, he has not consumed any alcoholic beverages. This is an important consideration since both disqualifying offenses occurred when he was intoxicated. Petitioner began working at FSH on September 26, 1979. He was first employed as a support service aide but was eventually promoted to the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Because of a background screening which occurred in 1997, Petitioner's disqualifying offenses were discovered, and he was forced to resign effective February 12, 1998. He has requested an exemption so that he can return to his employment. Since being forced to resign some four months ago, he has not been employed. The two disqualifying offenses involve battery on Petitioner's long-time wife, Shirler. In both cases, she suffered injuries serious enough to require treatment at a local hospital. Shirler says, however, that Petitioner has "changed" since his 1992 arrest, and he no longer drinks, is communicative with her and the three children, and is a good father. Petitioner attends church, is a member of a lodge in Quincy, Florida, and has a much better attitude since he stopped drinking. He has received good work evaluations during his most recent years of employment at FSH. Former co-workers and supervisors attested to the fact that Petitioner has good rapport with his co-workers and residents, and he performs his stressful job with a "cheerful" and "pleasant" attitude. He was also described as one of the "better" employees in the forensic unit. In March 1987, or more than eleven years ago, Petitioner received a five-day suspension because of an altercation with an inmate in the FSH forensic section laundry room. The suspension was meted out after Petitioner became involved in an argument with an inmate and drew an opened knive in a threatening fashion. Although Petitioner denied that the blade was exposed, testimony by a co-worker established that it was exposed in a threatening fashion. The altercation was resolved, however, before any violence occurred. In mitigation, it was established that Petitioner's possession of a knive in the laundry room was not unlawful since it was necessary for him to use a knive to open the sealed buckets of detergents. On October 13, 1993, Petitioner received a written reprimand for "Abusive and/or Threatening Language." On that occasion, Petitioner was instructed by his supervisor to help fold some laundry in the laundry room. Petitioner replied that he would not and told him "to get off my fucking back." Petitioner also pointed his fist at the supervisor in a threatening manner and "threatened to kick his butt." On June 27, 1994, Petitioner was suspended for fifteen work days effective July 8, 1994, for using threatening and/or abusive language towards a supervisor. This disciplinary action was taken after Petitioner had again refused to comply with instructions by his supervisor. On that occasion, he became "real mad," called her a "motherfucker," shook his fist at her, and threatened to "get her." Although the supervisor stood her ground against Petitioner, she was "afraid" for her safety. Petitioner was less than candid in describing the incidents which led to him receiving disciplinary action by his employer in 1987, 1993, and 1994. He has, however, expressed remorse for striking his wife in 1990 and 1992, and he regrets the embarrassment he caused his wife and children. For the last four years, Petitioner has had a blemish-free record at FSH, including good evaluations from his supervisors and a reputation as one of the "better" employees in his section. Given these considerations, it is found that Petitioner has sufficiently rehabilitated himself since the disqualifying incidents, and that he will pose no threat to the FSH clients and inmates.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 4th day of June, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
Findings Of Fact The Board is the state agency that licenses mental health interns in the State of Florida. The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515. This license was issued after Ms. Acosta completed and submitted to the Board an application for the license. Ms. Acosta received her higher education from Newport University in California. It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia. Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia. Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license. Intern licenses are issued for two-year periods. Ms. Acosta's license was last renewed on February 5, 2001. In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents. In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing. By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows: As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error. Section 491.009(1)(a), F.S. provides that: The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2): Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department. After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration. Should you have any questions, please feel free to contact us at our office at . . . . Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her. John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited. Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board. Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following: Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows: 2. Education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . . Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other. If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action. Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter. On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following: Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office. Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by Ms. Foster's office on May 7, 2002, provided as follows: As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license. On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed. Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor. Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application. Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license. While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2012. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman Suite 210 7695 Southwest 104th Street Miami, Florida 33156 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susan Foster, Executive Director Department of Health Board of (Certified Master Social Worker) Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
