The Issue Whether Petitioner, Mary E. Johnson, was discriminated against by her discharge from her position as a Certified Nurse Assistant by Respondent, Ormond Beach Memorial Hospital (Hospital), on November 21, 1991, because of her handicap, clinical depression, in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner worked as an on-call Nurse Assistant for Respondent. On call employees were guaranteed no certain amount of hours and no benefits were provided to them. On call employees were called to work when patient census was high, and were the first to be cancelled when the census was low. Vodenicker, Tr. 29 (1. 20-25) - 30 (1. 1-19); Johnson, Tr. 31 (1. 4-5). On November 21, 1991, Respondent discharged Petitioner from her position as a Certified Nursing Assistant at the Hospital. Hearing Officer's Exhibit 1. Petitioner had been hospitalized the majority of May 1991 for clinical depression. She returned to work at the Hospital following her hospitalization and was not hospitalized again prior to her discharge, although she did continue to have problems with depression. Johnson, Tr. 33 (1. 18-25) - 34 (1. 1-14). Ms. Vodenicker, Vice President of Nursing Services, became aware that Petitioner had been hospitalized for clinical depression during a counseling session on August 20, 1991. Ms. Sally Cole, Nurse Manager of Six North, was also present during this meeting. Johnson, Tr. 53 (1. 23-24); Vodenicker, Tr. 120 (1. 8-16), Tr. 121 (1. 9-17), Tr. 133 (1. 8-11). In early May, Diane McCall, Assistant Director of Nursing, was told by Dorothy Johnson, Petitioner's mother, that Petitioner was depressed and had been hospitalized. McCall, Tr. 78 (1. 23-25) - 79 (1. 1-8). Petitioner never discussed her clinical depression with Ms. McCall. McCall, Tr. 79 (1. 9-14); Johnson, Tr. 51 (1. 5-7). Petitioner's psychiatrist, Dr. Oh, had no conversations with anyone at the Hospital regarding Petitioner's clinical depression. Johnson, Tr. 38 (1. 13-15). As a physician practicing in the area, the nurses and staff were familiar with his specialty, and some of the Petitioner's supervisor's knew Dr. Oh was treating the Petitioner. Petitioner did not inform any members of the Hospital's nursing staff that she was suffering from clinical depression. Johnson, Tr. 50 (1. 19-22). Ms. Burns, one of Petitioner's supervisors, was not aware that Petitioner suffered from clinical depression. Johnson, Tr. 51 (1. 14-16); Burns, Tr. 182 (1. 16-19). Ms. Bowen, Nurse Manager of Six South, had no knowledge that Petitioner suffered from clinical depression. Johnson, Tr. 52 (1. 10-12); Bowen, Tr. 185 (1. 9-17). In her capacity as Team Leader and/or Charge Nurse, Ms. Canelli had occasion to supervise Ms. Johnson's work. Ms. Canelli described Petitioner's performance as "erratically efficient" because sometimes Petitioner was "very good at her job and at other times she was less than adequate". Canelli, Tr. 83 (1. 4-15). In early May 1991, Petitioner was counseled by Ms. Vodenicker regarding her personal interactions with a coworker, Brad Van Buren. Ms. Vodenicker cautioned Petitioner to keep her personal life separate from her business life at the Hospital. Johnson, Tr. 57 (1. 15-25) - 58 (1. 1-15). On July 20th, Ms. Canelli counseled Petitioner regarding the deficient level of care she had provided to a "total-care patient" (i.e., a patient who cannot feed, bathe or move themselves in bed) on July 2nd. Ms. Canelli discovered the patient "lying in a puddle of stool," and located Petitioner sitting at the nurses station holding her pocketbook and waiting to leave for the day, even though there was still 20-25 minutes left until the end of the shift. Ms. Canelli instructed Petitioner to clean up the patient. About ten minutes later, Ms. Canelli went back into the patient's room and discovered that the patient had apparently been wiped off with a dry cloth but had not been bathed. This was evident because there was still stool on the patient's pillow, dressings, and leg. Ms. Canelli summoned another Nurse Assistant, and they cleaned up the patient. Ms. Canelli counseled Petitioner regarding this incident on the next available opportunity she had to work with her, and she also documented the incident. Canelli, Tr. 83 (1. 21-25) - 84 (1. 1-17) - 85 (1. 4-25) -86 (1. 1-23); Respondent's Exhibits 6 and 7. On August 20th, Ms. Vodenicker had a second counseling session with Petitioner concerning Mr. Van Buren, following a complaint by Mr. Van Buren that Petitioner had been following him around in her car and that she had been seen in the Hospital parking lot watching him as he came on duty on the evening of August 19th. Vodenicker, Tr. 118 (1. 10-14). On October 27th, Ms. Canelli counseled Petitioner about Petitioner's absence from her assigned floor when she could not be located by the nursing staff, even after she was paged over the Hospital paging system. Ms. Canelli documented the events surrounding this counseling session on October 28th, to include several prior instances in which the nursing staff had been unable to locate Petitioner on her assigned floor. Canelli, Tr. 88 (1. 2-25) - 89 (1. 1- 8) - 102 (1. 1-25) - 103 (1. 1-3); Respondent's Exhibit 8. Ms. Vodenicker requested that Ms. Cole, Nurse Manager of Six North, escort Petitioner to Ms. Vodenicker's office in order to discuss the situation and to get Petitioner's side of the story. Ms. Cole sat in on the meeting as a witness. Ms. Vodenicker reminded Petitioner of their previous discussion regarding Mr. Van Buren and told Petitioner to keep her business and personal lives separate. Ms. Vodenicker also took this opportunity to discuss other problems with Petitioner's job performance. Vodenicker, Tr. 119 (1. 15-25) - 120 (1. 1-7); Johnson, Tr. 58 (1. 18-25) - 59 (1. 1-10). Because Petitioner's actions were in violation of the directives that Ms. Vodenicker had previously discussed with Petitioner in May, Ms. Vodenicker a wrote a disciplinary report. Johnson, Tr. 121 (1. 20-24). On August 21st, Ms. McCall presented Petitioner with the disciplinary report in the presence of Ms. McCall. Petitioner refused to sign the document, and Ms. Vodenicker made a notation of this fact on the face of the document and forwarded the original to the Hospital's personnel department. Vodenicker, Tr. 121 (1. 25) - 122 (1. 1-23) - 146 (1. 10-25) - 147 (1. 1-3); McCall, Tr. 156 (1. 22-25) - 157 (1. 1-11); Johnson, Tr. 59 (1. 11-25) - 60 (1. 1-4); Respondent's Exhibit 3. Ms. Burns counseled Petitioner after the Petitioner failed to answer a page and could not be found when Ms. Burns undertook a personal search for Petitioner. Petitioner later stated that she had taken a patient to x-ray; however, when Ms. Burns called the x-ray department, no one remembered seeing Petitioner in that area. Ms. Burns counseled Petitioner regarding leaving her assigned floor without notifying proper personnel and documented the incident. Burns, Tr. 176 (1. 4-23) - 177 (1. 22-25) - 178 (1. 1-17) - 179 (1. 3-25) - 180 (1. 1-10) - 181 (1. 14-16) - 182 (1. 9-15). On October 26, 1991, Petitioner was working under Ms. Peterson's supervision. Ms. Peterson observed that, while on a supposed 15-minute break at 8:15 a.m., Petitioner did not return until nearly 9:15 a.m. Ms. Peterson documented the incident after consulting with her supervisor. No one at the Hospital had instructed Ms. Peterson to keep an eye on Petitioner. Peterson, Tr. 172 (1. 12-23) - 173 (1. 18-25) - 174 (1. 1-6) - 175 (1. 1-3); Respondent's Exhibit 17. On November 2, 1991, Ms. McCall counseled Petitioner regarding being absent from her assigned floor, and limiting her breaks to 15 minutes and lunch breaks to one-half hour. Ms. McCall instructed Petitioner not to leave the floor unless directed to do so by the Charge Nurse or Team Leader. Ms. McCall documented her counseling Petitioner in her personnel file. McCall, Tr. 149 (1. 19-25) - 150 (1. 1-18); Respondent's Exhibit 14. On November 10, 1991, Petitioner was assigned to assist patient Joan Cummings. Patient Cummings was an "NPO" patient, meaning that she could not receive any of her fluids and medications by mouth. Petitioner forgot to measure the patient's urine output prior to emptying her bedpan. Canelli, Tr. 92 (1. 18-25). Johnson, Tr. 40 (1. 2-8) - 66 (1. 23-25) - 67 (1. 1-5). After forgetting to measure patient Cummings' urine, Petitioner asked the patient how many times she had urinated. The patient informed her that she had voided three (3) times, and Petitioner multiplied that number by 200 cc's to arrive at a figure of 600 cc's. Petitioner recorded 600 cc's as patient output on the intake/output slip, and which was ultimately recorded on the patient's daily log form located on a clipboard outside the patient's door. The information was later transcribed onto the patient's chart. Johnson, Tr. 40 (1. 10-25) - 42 (1. 4-25) - 43 (1. 1-12). The Nurse Assistant assigned to the patient is responsible for an accurate intake and output measurement as recorded on the patient's intake/output slips and daily log sheets. The information recorded on these Hospital documents are relied upon as accurate by the entire nursing staff. The information is transferred onto the patient's graphic charts by the nurse, or nursing assistant or nursing team leader, depending on who has time. Canelli, Tr. 112 (1. 8-25) - 113 (1. 1-3); Bowen, Tr. 184 (1. 3-8). By substituting 200 cc's in the place of the BRP designation, Petitioner failed to follow the procedures as described to her by Ms. Canelli. Petitioner had never been instructed by anyone at the Hospital to substitute 200 cc's for actual measurement. Johnson, Tr. 44 (1. 21-25) - 45 (1. 1) - 47 (1. 15-25) - 48 (1. 1-19) - 49 (1. 1-6); Canelli, Tr. 99 (1. 2-8). It would not be proper for a nurse or nurse assistant to multiply the number of times a patient had voided by 200 cc's, and use that number as an accurate representation of the amount of urine output by the patient. Canelli, Tr. 91 (1. 9-14). Petitioner's "Nursing Skill Evaluation" form reveals that she received training on the use of intake/output sheets, including the accurate measuring of cleaning of these items, although she cannot recall what instructions she received. Johnson, Tr. 64 (1. 7-25) - 65 (1. 1), (1. 14-17); Respondent's Exhibit 4. An accompanying self-evaluation form also reveals that Petitioner indicated that she felt comfortable with charting elimination of bedpan fluids and with the accurate measuring and cleaning of the graduated pitcher. Johnson, Tr. 67 (1. 12-25) - 68 (1. 1-12); Respondent's Exhibit 5. Ms. Canelli instructed her Nurse Assistants to inform the Team Leader, whenever they had forgotten to measure a patient's urine output and to let their Team Leader know the number of times the patient had voided so that the staff would have some idea that the patient had voided and chart that the urine had not measured. Canelli, Tr. 91 (1. 17-25). Petitioner's substitution of her estimate of urine output was contrary to acceptable charting practice. Petitioner had been instructed by Ms. Canelli, who regularly performed Team Leader and Charge Nurse duties, to document instances in which she had forgotten to measure a patient's output by writing the number of times the patient had voided beside the designation "BRP" (bathroom privileges). Johnson, Tr. 43 (1. 25) - 44 (1. 1-20). On November 10, 1991, patient Cummings reported to Ms. Canelli that Petitioner had dumped her bedpan without measuring the urine output after the Petitioner had left at the end of her shift. Ms. Canelli documented the facts related to her by the patient in a report to her team leader, Ms. Bowen. Canelli, Tr. 94 (1. 22-25) - 95 (1. 1-3); Respondent's Exhibit 9. Petitioner admits that the nurses rely on the information recorded on the intake/output slips and daily logs as being accurate representations of the actual amount of fluids measured by the Nurse Assistants. Johnson, Tr. 43 (1. 13-15). Nurse Bowen was the Team Leader on Six North on November 10, 1991. Ms. Bowen spoke with Ms. Cummings, who advised her that Petitioner had failed to measure her urine output before emptying the bedpan. Ms. Bowen also documented the patient's complaint in a report. Bowen, Tr. 184 (1. 9-19). Nurse McCall was advised of the Cummings incident when she returned to work after the weekend. Ms. McCall brought the incident involving patient Cummings to the attention of Ms. Vodenicker. In reviewing patient Cummings' medical file, Ms. Vodenicker was very concerned about Petitioner's inaccurate recording of patient information. Ms. Vodenicker opined that it was very important that the Hospital be able to trust what its health-care employees tell them and have confidence that the employees have done what they say they have done. Vodenicker, Tr. 123 (1. 9-20) - 124 (1. 7-16). Ms. Vodenicker was already aware of Petitioner's performance, as well as the prior written corrective action which she had given Petitioner. She reviewed Petitioner's personnel file, performance appraisals, and met with Nurse McCall, Petitioner's immediate supervisor, in order to analyze this matter further. Ms. Vodenicker decided in view of the decline in Petitioner's performance, the verbal and written counseling she had received from the supervisory staff, the prior corrective action which had been issued, and the recent incident involving patient Cummings that a decision was required regarding Petitioner's further employment. Vodenicker, Tr. 124 (1. 20-25) - 125 (1. 1-3). Ms. Vodenicker discussed the matter with Nurse McCall and asked that she provide her with a recommendation. Nurse McCall recommended Petitioner's discharge based upon the incident involving patient Cummings and Petitioner's declining work performance. Vodenicker, Tr. 125 (1. 8-18); McCall, Tr. 153 (1. 10-25) - 154 (1. 1-11) - 157 (1. 24-25) - 158 (1. 1); Respondent's Exhibit 13. Petitioner's annual performance evaluation reflected that there had been a demonstrable demise in her overall performance over the course of her first year of employment. McCall, Tr. 155 (1. 4-21). The decision to discharge Petitioner was not communicated to Petitioner until November 21st, mainly because of the time that it took Ms. Vodenicker to conduct her review of the situation and discuss the proposed disciplinary action with her superiors. Petitioner was not called to work due to low patient census on November 15, 18, and 20, 1991. Vodenicker, Tr. 125 (1. 23-25) - 126 (1. 1-18) - 144 (1. 1-6). On November 21, 1991, Ms. Vodenicker met with the Petitioner and reviewed the incident involving patient Cummings with Petitioner. Petitioner admitted to Ms. Vodenicker that she had forgotten to measure the patient's urine output and had documented the output as 600 cc's. Ms. Vodenicker expressed her concern over Petitioner's failure to properly chart patient information, and Petitioner's declining work performance. Ms. Vodenicker then terminated the Petitioner. Vodenicker, Tr. 126 (1. 19-25) - 127 (1. 1-8); Johnson, Tr. 189 (1. 22-25) - 190 (1. 1-19); Hearing Officer Exhibit 1. Petitioner states she does not wish to return to the Hospital as a Nurse Assistant at this time for health reasons. Johnson, Tr. 50 (1. 3-13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations issue a Final Order finding that Petitioner has failed to prove a violation of Section 760.10, Florida Statutes. DONE AND ENTERED this 17th day of September, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 17th day of September, 1993 APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1556 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Respondent's PFOF: 1-7 Adopted. 8-9 Irrelevant. 10-17 Adopted. 18-19 Irrelevant. 20-27 Adopted. 28 Irrelevant. 29-32 Adopted. 33 Rejected as contrary to the best evidence. 34-42 Adopted. 43-44 Subsumed in 24 and other paragraphs. 45-50 Adopted. 51-56 Subsumed in 41. 57 Adopted. Petitioner's PFOF: 1-End Rejected and contrary to the best evidence. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Mary E. Johnson c/o Ms. Dorothy Johnson 1807 Golfview Boulevard South Daytona, Florida 32119 Gary E. Thomas, Esquire FISHER & PHILLIPS 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326
Findings Of Fact Respondent, Americare Corporation, is licensed by the State of Florida, Department of Health and Rehabilitative Services, to operate a nursing home facility in Jacksonville, Florida, known as Cedar Hills Nursing Center. This licensure is in accordance with Chapter 400, Part I, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. On October 27, 28 and 29, 1981, a license survey inspection was held at Respondent's licensed premises. The inspection was made by personnel from the Jacksonville office of the Department of Health and Rehabilitative Services, State of Florida. The purpose of the inspection was to determine compliance by the facility with the regulatory provisions of Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code. One of the inspectors was Victor Raiser, whose position with Petitioner is that of Hospital Consultant. During the course of the inspection, Raiser noticed a number of roaches in the home. He saw approximately ten roaches, especially in the area of a bathroom near patient room 45 and in the area of the patients' visiting and social area. The number of roaches observed is an aggregate number, based upon observations over the three-day inspection which lasted an average of six to seven hours a day. Following the survey in October, 1981, an exit conference was conducted with the nursing home administrator. The interview was held on October 29, 1981. The administrator at Cedar Hills is Billy Miles. At that time, Raiser told Miles of Raiser's concern about the roaches that had been seen. The presence of roaches was acknowledged by Miles. Subsequent to the visit, Leroy C. Dykes, Supervisor, Area I, Office of Licensure and Certification, Department of Health and Rehabilitative Services, sent Miles his findings concerning the October, 1981, survey, together with a statement of deficiencies. The same form setting forth deficiencies has a section in which Respondent may offer plans of correction to be returned to Petitioner. See Petitioner's Exhibit 1, admitted into evidence. The letter of findings was dated November 4, 1981. The deficiencies form referred to observations of roaches in the October, 1981, inspection. It also referred to a prior citation for a roach problem on September 4, 1981, and characterized the situation in October, 1981, as being an "infestation." The statement of deficiencies form was responded to by the facility. The stated plan of correction was to increase the pest control services to promote eradication of the roaches and to use caulking measures in the building and to remove unnecessary items such as food, suitcases, etc., from rooms within the facility. See Petitioner's Exhibit 1. After receiving the statement of deficiencies, in addition to the form response setting out corrections related to roaches, Miles sent a letter to Dykes. This correspondence was dated November 16, 1981, a copy, of which may be found as Petitioner's Exhibit 4, admitted into evidence. In the correspondence, Miles took issue with the utilization of the term "roach infestation" and indicated the doubling of pest control services for November and December, 1981, to address the roach problem. Bruce C. Baldwin, Regional Manager for Diversicare Corporation, a management corporation for Cedar Hills Nursing Center, wrote to Dykes on December 15, 1981, and again on January 13, 1982, explaining steps to be taken to deal with the roach problem. This included major extermination in January, 1982; the removal of contents of tables and closets in patient rooms; spraying furniture and baseboards and caulking of cracks and crevices in the building. It was also indicated that double visits would be made through April, 1982, to spray for roaches. Finally, Baldwin mentioned the intent of the Respondent to review insect control procedures. Copies of the pertinent portions of this correspondence may be found as Petitioner's Exhibit 7, admitted into evidence. In keeping with the various statements of intent to address the roach problem, Respondent has carried out those plans. In the October 27, 28 and 29, 1981, inspection, deficiencies were also noted on the subject of the nurse call system. Over the period of the visit, Raiser noted that cord and activator switches for call systems were not plugged into the wall jack in certain patient rooms. In other cases, he observed that the plug in the wall jack had been partially pulled out which rendered the cord and activator switch inoperable. The switches in the patient rooms which had been unplugged or partially unplugged were tested and found to be operable. Switches which had been partially pulled out on the first day were observed to be partially pulled out on the second day of the inspection, rendering them inoperable on that second day. Raiser also found operable call devices where the enunciators were not available to the patients, in that they had fallen behind the patient beds or were otherwise inaccessible to the patient. There were some patient rooms examined where the nurse call activator switch was wrapped and secured with rubber bands and placed behind patients' beds, preventing access to the device. The aforementioned call device problems pertained to Patient room 12, 21, 25, 27, 36, 52, 54, 56, 58 and 34. It was not established what condition rendering the device inoperable or inaccessible pertained to which room. In the October, 1981, inspection of the tub room adjacent to patient room 57, it was revealed that a chain was missing from the activator switch for the nurses call device. No proof was made of the necessity to have the chain available to operate the switch in the tub room. These circumstances related to nurse call devices were alluded to in the findings letter of November 5, 1981, from Dykes to Miles and in the statement of deficiencies attachment to those findings. See Petitioner's Exhibit 1. In response to the statement of deficiencies, as found in Exhibit 1, the call bell systems were made accessible to the patients and damaged cords were replaced and missing cords installed. In addition, staff meetings were held with each shift concerning the inaccessibility of call devices for patients. In the course of a further inspection of the Cedar Hills facility conducted on November 9 and 10, 1981, employees of Petitioner found the nurse call switch device was missing from a bed in patient rooms 21, 22, 54 and 56. They also found two of the nurse call devices were tied with rubber bands rendering them inaccessible in patient room 27. This is spoken to in the statement of deficiencies, a copy of which is found as Petitioner's Exhibit 6, admitted into evidence. Respondent responded to the statement of deficiencies of the November, 1981, appraisal by replacing the bell portion of the call devices in rooms 21, 22, 23, 54 and 56. Moreover, a staff meeting was held on November 10, 1981, with each employee work shift, to discuss the call device problem. By further way of explanation, Claudette Bramer, Nursing Director at Cedar Hills, discussed the housekeeping procedures of the nursing home and the fact that during the course of those activities, call buttons are occasionally removed to conduct cleaning chores related to the patients' rooms. This is especially true when beds are made. Patients are out of their rooms when clean ups are being done. It is the policy of the nursing home to replace the plug on the call device after the clean up has been concluded. Additionally, Bramer is aware of instances in the nursing home in which the patients have pulled the call device plugs out of the wall, rendering them inoperable. In dealing with this circumstance, plugs are reinserted into the jacks when they are discovered to be inoperable. The Administrative Complaint, which is the subject of this Recommended Order, pertains to the events of October 27, 28 and 29, 1981, related to roaches and nurse call devices.
The Issue The issue for determination is whether Respondent should deny Petitioner's application for a license to operate a family day care home for the reasons stated in Respondent's letter of denial.
Findings Of Fact On January 21, 2004, Petitioner, M.G., applied for a license to operate a family day care home at 2430 Kiwanis Avenue in Lakeland, Florida. Respondent, the Department of Children and Family Services, is the agency responsible for licensing family day care homes in the state. By letter dated March 5, 2004, Respondent notified Petitioner of Respondent's intent to deny Petitioner's application for a license (the denial letter). The denial letter relies solely on a report from the Florida Abuse Hotline Information System, Report No. 2003352176 (the abuse report). The denial letter states, in relevant part, that Respondent is unable to determine from information in the abuse report whether Petitioner will adequately ensure the safety of children. The preponderance of competent and substantial evidence at the administrative hearing shows that Petitioner will adequately ensure the safety of children in a family day care home. Petitioner left her two biological children in her vehicle on September 15, 2003, in front of a strip center of stores while Petitioner retrieved a paycheck from a consignment store that employed Petitioner and then went to an automatic teller (ATM) machine at an adjacent store. Petitioner left her children in the back seat of the vehicle with the doors locked, the engine running for air conditioning, the transmission in park, and the parking break engaged. The abuse report bases its findings on hearsay statements obtained by an investigator for Respondent during his investigation on September 17, 2003. The abuse report concluded that Petitioner neglected her children because she was inside a store retrieving her paycheck for more than five minutes and that the children were out of sight of Petitioner while Petitioner was inside the store. The trier of fact cannot base findings of fact solely on hearsay testimony of the investigator. The preponderance of competent and substantial evidence at the administrative hearing shows that Petitioner did not leave sight of her children. Petitioner parked her car in front of the consignment store. The width of the sidewalk, or approximately ten feet, separated the car from the entrance to the consignment store. Petitioner never entered the consignment store but remained in the doorway within sight of her children. Petitioner had telephoned ahead to the owner of the consignment store. The owner had the paycheck prepared when Petitioner arrived and handed it to Petitioner in the doorway of the store. Petitioner then used an ATM at an adjacent store. The ATM was approximately 20 feet from Petitioner's vehicle. The retrieval of the paycheck and the ATM transaction lasted approximately five minutes. During the five minutes that Petitioner was outside of her car, Petitioner's youngest child escaped from his car seat in the back seat of the vehicle and crossed into the front seat. Petitioner, subsequently, entered the vehicle, put her child in the car seat, and drove away. The facts on which the abuse report concluded that Petitioner had neglected her children on September 15, 2003, were based on hearsay. Competent and substantial evidence at the hearing did not support some of those facts. If it were determined that the facts shown at the hearing constituted neglect, the abuse report correctly determined that the neglect resulted in a low risk of harm to the children. The abuse report recommended no intervention, placement services, or judicial intervention. The incident on September 15, 2003, was a single isolated event that does not represent a pattern and practice of endangering children. The incident was an exception to Petitioner's normal practice, rather than evidence of her normal practice. Petitioner demonstrated that she can adequately ensure the safety of children in her care.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application for a license to operate a family day care home. DONE AND ENTERED this 17th day of June, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 M. G. (Address of record) Paul F. Flounlacker, 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
The Issue The issue in this case is whether Respondent’s intended award of a contract for telephone systems maintenance and installation services pursuant to Bid #09-005/LH is contrary to Respondent’s governing statutes, Respondent’s rules or policies, or the solicitation specifications.
Findings Of Fact On June 17, 2008, the School Board issued an ITB for telephone systems maintenance and installation services. The ITB was identified as Bid #09-005/LH. Section 2.2 of the ITB described the scope of work as follows: Bids will be requested for the following types of work from the qualified and awarded Contractors: Upgrades and installation of various types of Telephone Systems, including but not necessarily limited to the following: wiring, cabinet, control, and conduit installation and upgrades to existing system components, programming panels/switches, testing telephone systems, installation, replacement of devices and system components, power supplies, all other projects directly related to telephone systems, including new installations (material and labor), at any designated SBBC [School Board] site and certification of various telephone systems. The School Board of Brevard County will have salvage rights if requested for all parts and material that is [sic] removed from each project. All work/materials shall be in accordance with State Requirements for Educational Facilities (SREF), the Florida Building Code, SBBC Facilities Standards and Guide Specifications. Section 2.4 of the ITB set forth the qualifications of the contractor and required the following: 2.4.1 The successful “Telephone System Contractor” shall be a person whose business includes the execution of contracts requiring the ability, experience, science and knowledge, and skill to lay out, fabricate, install, maintain, alter, repair, monitor, inspect, replace, or service telephone systems for compensation, including all types of telephone systems, for all purposes. The business shall be self-proprietary, will provide service with company employees, company owned and insured vehicles and company owned equipment. Subcontracting of Telephone System Services will not be allowed. * * * The bid will be awarded only to responsible bidders that are factory authorized dealers of the systems bid and qualified to do the work specified with manufacturer trained and certified technicians. The successful “Telephone System Contractor” shall have a minimum of two certified/trained technicians for each of the installed system [sic] bid. For systems that are manufacturer discontinued, contractor shall have a minimum of tow [sic] trained technicians, with five or more years of experience in maintaining such systems. Awarded bidder(s) shall be capable of and responsible for testing each wire, landing all wire, mounting all devices, programming panels, trouble shooting and certifying telephone system installations. In addition, the successful bidder(s) must be certified to provide support for existing structured cabling system (SCS) infrastructure. If the SCS has an existing warranty, the successful bidder(s) shall provide warranty coverage on the SCS as defined by the manufacturer. The School Board has existing SCS warranties from either Molex or Siemens[1] certified solutions. The successful bidder(s) must also be qualified and authorized by a manufacturer to design, configure, and maintain an IP telephony multiservice network solution using QoS, Call Control clustering, H.323, MGCP, or SIP signaling protocols and shall be able to integrate legacy TDM Telephone Systems and voice mail systems into an existing data network. Awarded bidder(s) must install telephone systems to meet all State of Florida Department of Education (SREF), NFPA and NEC requirements. The bidder shall submit the following information in ‘Envelope B’: Experience record and proof that bidder is a certified factory trained dealer for the system(s) being bid with at least five (5) years experience in telephone service work. Evidence that all field supervisory employees are certified manufacturer and SCS technicians. List and a brief description of similar work satisfactorily completed with location, dates of contracts, names, phone numbers and addresses of owners. List of equipment and facilities available to do the work. Names and evidence of level of competency of all personnel who will be used in District projects. The District must recognize competency certification and employees (names must appear on invoices with number of hours worked). Name(s) of project manager(s) and evidence of current “Certificate of Factory Training” of system(s) bid. Provide resume of Project Managers. Evidence that bidder’s support team is located within a 75 mile radius of Brevard County. Evidence of ability to supply as-built drawings as needed. Evidence of occupational license (business tax receipt) and State of Florida Low voltage license. Letter from manufacturer stating that you are an authorized dealer/service provider for systems bid. Failure to submit the above requested information (in Envelope ”B” with Price Sheet and Questionnaire) may be cause for rejection of the proposal. (Emphasis in original) The Contractor must complete the enclosed questionnaire which will be used to evaluate capabilities to perform the work during the contract period. The questionnaire must be completed and contain sufficient and specific information which directly responds to the request. The School Board reserves the right to reject bids which do not provide sufficient information to evaluate the qualifications of the Contractor and where information provided does not demonstrate a proven past record (such as negative references, failure to complete projects, etc.). Section 1.2 of the ITB stated: THE INTENT of this bid is to establish a contract for a period of one year from date of award during which time; the successful bidder(s) shall guarantee firm-fixed pricing for telephone system maintenance and materials and firm-fixed labor, equipment and material prices for minor and major installation of the District’s Telephone systems as awarded to him/her as specified in this bid. The bid shall be based on an ‘All-Or-None” format per system manufacturer. This bid will be awarded to a minimum of one contractor for each manufacturer of systems used by the District. In the best interest of the District two or more contractors may be awarded a specified system. The “lowest and best” bid will be the primary contractor and the next “lowest and best” bids will be alternate or secondary contractors. The primary contractor may be requested to perform the maintenance and work required for minor upgrades and installation projects with an estimated cost of $6,000.00 or less. Each project estimated to be over $6,000.00 will be given to all contractors awarded the specific system to quote as specified. At the discretion of The School Board of Brevard County, Florida the contractor providing the lowest quote meeting specifications will be awarded the project. Section 8.1 of the ITB clarified the meaning of “lowest and best bid” as follows: SCHOOL BOARD intends to accept the “lowest” and “best” bid(s) submitted to it. The term “lowest” aforesaid shall be interpreted to mean the lowest “ALL OR NONE” Total Net Bid Price for all required tasks for each system manufacturer. In determining which is the “lowest” and “best” bid received, the SCHOOL BOARD shall also consider and weigh (a) the experience, qualifications and reputation of each BIDDER, and (b) the quality of products and services proposed by each BIDDER. SCHOOL BOARD reserves the right to: reject any and all bids received by it, waive minor informalities in any bid, accept any bid or part thereof that in its judgment will be for the best interest of the School Board of Brevard County, Florida. The ITB listed the following telephone systems for which bids were to be submitted: Hitachi, IWATSU, NEC, Nortel- BCM, Premier, Prostar, Starplus, and Toshiba. Nortel-BCM and IWATSU are systems that are currently supported by the manufacturer. Xeta Technologies had acquired the distribution rights for Hitachi and was providing support for the Hitachi systems. The School Board considered the following systems to be discontinued systems, which were not currently supported by the manufacturer: NEC, Premier, Prostar, Starplus, and Toshiba, collectively referred to as the discontinued systems. Morse and BBTS were among the bidders which submitted bids in response to the ITB. BBTS bid all systems. Morse bid all systems with the exception of Nortel-BCM. Morse was not an authorized/certified dealer for Nortel-BCM systems. BBTS was the low bidder for the IWATSU system. Morse was the low bidder for the discontinued systems and Hitachi. In its bid, BBTS stated that it was a factory- authorized dealer for Hitachi, Nortel Networks, and IWATSU Voice Networks. BBTS submitted a letter from IWATSU stating that BBTS was an authorized IWATSU distributor in good standing. Contrary to the ITB specification 2.4.4J, BBTS did not submit a letter from Nortel stating that BBTS was an authorized dealer/service provider for Nortel. Instead, BBTS advised the School Board to contact Jon Gain, a field channel manager for Nortel, for information regarding the Nortel networks. BBTS provided Mr. Gain’s mailing and e-mail addresses and his telephone number. BBTS submitted a letter from XETA Technologies, which stated: Please be advised that XETA Technologies, Inc., acquired the distribution relationships of Hitachi Telecom (USA), Inc. for the HCX5000/HCX5000® product line, effective May 5, 2006. Per correspondence dated May 11, 2006, Orlando Business Systems was notified of XETA’s assumption of Hitachi’s obligations under their Authorized Distributor Agreement, and Orlando Business Systems remains an Authorized Hitachi Distributor. Kathyrn Arvonio, a telecommunication specialist employed by the School Board for over four years, helped to evaluate the bids submitted in response to the ITB. Ms. Arvonio spoke with a field channel manager from Nortel on July 23, 2008. She was advised by the field channel manager that BBTS could service, maintain, and buy parts necessary for all repairs on Nortel-BCM products. Based on the information provided by Nortel, Morse was authorized by Nortel to service and maintain a Nortel system. Prior to making a recommendation for contract award, Ms. Arvonio called personnel at XETA and was advised that BBTS was also an authorized distributor of Hitachi. Morse included with its bid a letter from IWATSU stating that Morse was an authorized dealer for IWATSU. Morse did not include a letter from either Hitachi or XETA that Morse was an authorized dealer for Hitachi or XETA. BBTS stated in its bid that it had trained/certified technicians for the discontinued systems and had maintained the discontinued systems for 20 years. In its bid, BBTS identified Arthur Love as a technician who had been employed with BBTS since 1992. The bid stated that Mr. Love “has certifications on the Hitachi PBX, Iwatsu Adix, Nortel BCM 1648 and many more. He is trained on the Premier NC616, Prostar Plus, and the Starplus Key Systems.” Included with the bid were certificates from Hitachi, IWATSU, and NEC. In its bid, BBTS identified Doug Chamberlin, who had been employed by BBTS as a technician since 1994, and stated that Mr. Chamberlin “has certifications on the Hitachi PBX, Iwatsu Adix, Iwatsu Enterprise CS (IP System), Nortel BCM, Mitel SX2000 PBX and the Mitel 3300 ICP (IP System), Starplus 616, Prostar and the Toshiba DK280 and many more. He is trained on the Premier NC616, and the NEC 16/48.” The bid included certificates for Mr. Chamberlin from Hitachi, IWATSU, Toshiba, and Starplus. BBTS identified Troy Gaskins in its bid as being employed, as having 11 years' experience as a technician, and as having “certifications on the Iwatsu Adix, Prostar and the Norstar Key Systems.” BBTS stated that Mr. Gaskins was trained on the Iwatsu ZTD, Premier NC616, Starplus, and the NEC 16/48 Key Systems. A certificate from IWATSU was included with the bid. In its bid, BBTS identified Gustavo Beltran as having 12 years' experience in the telecommunications industry. BBTS stated that Mr. Beltran was “certified on the Mitel SX-200ICP (IP PBX).” The bid also stated that Mr. Beltran was trained on the Iwatsu Adix, Prostar, Premier NC616, Starplus, and the NEC 16/48. In its bid, BBTS identified Kevin Krise as having over 28 years' experience in the telecommunications industry. BBTS stated that Mr. Krise was “certified on the Mitel SX-2000, Mitel SX-3300 ICP (IP PBX), Siemens, Telrad, Macro Voice and many others” and that he was “trained on the Iwatsu Adix, Toshiba DK280, Iwatsu ZTD, Prostar, Premier NC616, Starplus and NEC 16/48 Key Systems.” Morse indicated in its bid that Kevin Joyce, Dale Koehler, and Jeff Pitt had successfully completed technical training through IWATSU. Morse stated in its bid that Gary Gage had in-depth knowledge of the Toshiba telephone system. Morse did not establish in its bid that it had two trained technicians with five years' or more experience in maintaining Hitachi, Prostar, Premier, Starplus, Toshiba, or NEC systems. The School Board has eight to ten portable classrooms that have Siemon structured cabling. The remainder of the structured cabling used by the School Board is manufactured by Molex. Molex is the standard for the School Board, and, when the portable classrooms with Siemon structured cabling are moved, the structured cabling will be switched to the Molex brand. The ITB required the bidders to be certified to provide support for existing structured cabling system (SCS) infrastructure and to provide warranty coverage on the SCS for systems under warranty. Clearly based on the ITB, the contractor awarded the contract was to be able to and expected to provide work on the SCS infrastructure when warranty work was involved. Ms. Arvonio interpreted the ITB to mean that the bidder awarded the contract was not to work on the structured cabling, but was to be able to test the SCS and notify the School Board if there was a problem. She also was of the opinion that the ITB did not require the bidders to be certified by Molex or Siemon. According to Ms. Arvonio, if there was a problem with the structured cabling, the manufacturer would be contacted if warranty work was involved, and, if the system was not under warranty, the work would be done by separate contract. No explanation was given why the language requiring certification was included in the bid specifications. In response to the ITB requirement that the contractor be certified to provide support for the School Board’s existing SCS, BBTS stated in its bid: BBTS has been a structured cabling system contractor for 20 years and currently holds installer certifications for the following manufacturers. See attached Installer Certifications. Molex Hubbel Siemons BBTS is not a “Certified Installer” through Siemons, but we do maintain current individual designer/installer certifications for Siemons. BBTS commits to providing the manufacturer’s warranty per the manufacturer’s specifications. BBTS included a certificate with its bid, certifying that BBTS was a certified installer for Molex. Also included with the bid were certificates for four individuals showing that they were certified Molex installers. As part of its bid, BBTS submitted certificates showing that one employee of BBTS had “satisfactorily completed the recertification requirements as a Siemon Cabling System Authorized Designer/Installer” and that another BBTS employee had “completed the required training and satisfactorily met all requirements to become a Siemon Cabling System® Authorized Installer.” Based on BBTS’s response, BBTS had employees who could perform warranty work on the SCS, if required to do so. Morse included with its bid a certificate from Molex certifying that Morse was a Molex-certified installer. Morse also included with its bid a certificate from the Siemon Company that Morse was a certified installer for the design, installation, and administration of Siemon Cabling Systems. Section 3.1.3 of the ITB required the bidders to include a catastrophic failure plan with each bid. The plan was to “provide interim service for totally replacing any system(s) to be maintained if a catastrophe should occur during any applicable maintenance period.” BBTS provided a catastrophic failure plan in its bid, which stated, in part: In the event of a Catastrophic Failure, Brevard Business Telephone Systems, Inc. (BBTS), and Orlando Business Telephone Systems, Inc. (OBTS) are in a position to assist the Brevard County Public Schools in its telecommunications requirements. We currently maintain a system capable of 100 stations and 24 trunks that could be installed in the event of a catastrophic failure. * * * Brevard County Public Schools would identify the sites that are priorities for continued operation of their telephone systems. BBTS would work with Bell South in restoring service to these facilities. All supplies necessary for replacement would be moved inland to OBTS should the need arise in order to maintain the serviceability of the parts. Orlando Business Telephone Systems, Inc. (Orlando Business Systems), and BBTS are separate business entities. Orlando Business Systems did not submit a bid in response to the ITB, and the bid submitted by BBTS was not a joint bid of BBTS and Orlando Business Systems. In its bid, BBTS identified Orlando Telephone Company/Orlando Business Systems as an affiliate of BBTS. In her evaluation of BBTS’s bid, Ms. Arvonio did not consider Orlando Business Systems as part of the bid and made her evaluation on the services which were to be provided by BBTS. BBTS is the current contractor providing telephone maintenance services to the School Board. Based on Ms. Arvonio’s previous experience with BBTS, she was aware that BBTS could maintain a telephone system consisting of 100 stations and 24 trunks during a catastrophic event. On July 31, 2008, the School Board posted an intended award of all systems to BBTS as the primary contractor and an intended award of the IWATSU system to Morse as the secondary contractor. BBTS was the lowest, conforming bidder for all systems. Ms. Arvonio received an e-mail dated August 19, 2008, from Jason Harrison from Nortel. The e-mail concerned the relationship between Nortel and BBTS and stated: Brevard Business Telephone Systems, Inc. is a contracted Nortel Authorized Reseller. They have a long standing relationship with Nortel in [the] Brevard County, FL area with a dedicated Nortel Field and Inside Support Team. When the BCM was launched BBTS was one of the first reseller’s to get fully accredited. As the platform has evolved, Nortel has modified the Accreditation requirements. BBTS is in the process of completing the latest requirements and will be finished with them by August 22nd 2008. If service is required before the completion of the exams, Nortel Support Services may be implemented by BBTS. Nortel Support Services are available to BBTS as part of their contract with Nortel. After the intended award was posted, staff from the School Board met with personnel from Morse to discuss Morse’s protest to the intended award. Personnel from Morse were asked if Morse had trained technicians for any of the discontinued systems. They responded that Morse had trained technicians for Hitachi, but did not provide any support for their claim. At the meeting, Steven Koller, a project manager for Morse, indicated that Morse did have trained technicians for some of the discontinued systems. He did not identify the systems nor did he identify the technicians. At the final hearing, Mr. Koller testified that he had more than five years' experience with systems manufactured by Toshiba, NEC, and Hitachi. He could not identify other technicians at Morse who had more than five years' experience with the discontinued systems and deferred to Michael Costello, the owner of Morse, for that information. At the final hearing, Mr. Costello, who controlled all aspects of the technician side of Morse, testified that he had over five years’ experience with some of the discontinued systems and that he had two or more technicians with over five years’ experience with the discontinued systems with the exception of Hitachi. Mr. Costello further testified that he could not identify the technicians without looking at their resumes. No resumes were produced at the final hearing. Finally, Mr. Costello said that Gary Gage, a long-time employee of Morse, had experience with the discontinued systems. Mr. Costello’s testimony is not credible. As the person in charge of the technician side of Morse, he had very little knowledge of exactly what experience his staff had in working with the discontinued systems at issue. If he had staff with the requisite experience, it would have been very simple for him to submit resumes of those employees in its bid or to attach certificates of training as did BBTS. Morse chose not to do that. Additionally, after the intended award was posted, Morse was given an opportunity at meetings with the School Board to identify personnel with the experience with the discontinued systems, and it failed to take advantage of that opportunity. Petitioner has argued that the School Board and Ms. Arvonio, in particular, were biased toward BBTS. Ms. Arvonio had worked for BBTS for seven years prior to becoming employed by the School Board. No evidence established that either Ms. Arvonio or the School Board was biased in favor of Morse. Ms. Arvonio called companies listed by other bidders to verify the bidders’ credentials. Within the last two years, the School Board has awarded a bid to Morse for structured cabling for over $200,000.00. The School Board staff gave Morse an opportunity after the bids were opened to provide information which would establish that Morse had sufficient trained staff to service the discontinued systems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the bid protest filed by Morse. DONE AND ENTERED this 10th day of February, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2009.
Findings Of Fact At all times material, Respondent was a licensed practical nurse in the State of Florida, having been issued license number 32187-1. During November, 1983, Respondent was employed by On Call Medical Service, a nursing agency which provided care for patient Dee Zenrich. Patient Zenrich resided in the home of Respondent, and Respondent was regularly assigned to provide nursing care to patient Zenrich during November, 1983. Respondent normally worked one shift of approximately eight hours per day caring for Zenrich. She relieved another On Call Medical Service nurse at the beginning of her shift and was, in turn, relieved by an On Call nurse at the end of her shift. Patient Zenrich suffers from Amyotrophic Lateral Sclerosis (ALS) and requires twenty-four hour skilled nursing care since she is on a respirator and requires frequent suctioning. Further, the patient is completely immobile and can only communicate by blinking her eyes and through a number board. The testimony of the medical witnesses established that patient Zenrich requires constant observation. Thus, any absence from her bedside by the attending nurse poses some risk. During the week of November 7 to 13, a relieving nurse observed Respondent, while she was the duty nurse, briefly leave Zenrich unattended to visit with a friend in the kitchen and, on another occasion, to take a shower. She also was observed in bed sleeping with the patient while on duty during this period. On November 22, 1983, Zenrich's medical condition required her to be transported by ambulance to the Navy hospital emergency room. Since two nurses were required to transport Zenrich, Respondent was asked to go on duty to transport the patient. Respondent had not been scheduled to go on duty and had been consuming alcohol. However, she continued to drink after she was reminded by an On Call administrator that she was on duty. Although Respondent's close relationship with the patient prompted her to accept the unscheduled assignment, she was nonetheless on duty and should not have continued to consume alcohol. Respondent also behaved in a belligerent manner toward hospital staff at the emergency room but this was apparently out of concern for the rough handling she believed patient Zenrich was receiving. Patient Zenrich was admitted to the hospital in late November, 1983. Based upon nutritional studies and her continuing problem of ingesting sufficient food, a physician recommended insertion of a gastrostomy tube. While on duty as a nurse and in the presence of the patient, Respondent angrily questioned the physician's recommendation and was verbally abusive about the physician. Again, however, this questionable conduct was at least well motivated and arose from Respondent's sincere concern for the patient. In addition to the November 22 incident discussed above, an On Call Medical Services nurse observed Respondent drinking while on duty during the week of November 7-13, 1983, and on duty while under the apparent influence of alcohol on November 17 and 23, 1983. On these two occasions, Respondent smelled of alcohol, exhibited slurred speech, bloodshot eyes and staggering. Respondent admits that she does drink alcohol prior to going on duty, but contends that the quantities are limited. She denies any on-duty drinking (except as noted below) and believes that she is never under the influence of alcohol when on duty. Respondent concedes that she did drink on November 22, the day patient Zenrich was taken to the hospital, but points out that she was not the primary care nurse and thought she was merely accompanying the patient as a friend. She did not recall receiving any pay for her services that day and did not believe she was officially on duty at the time. The testimony of both Petitioner's and Respondent's witnesses established that Respondent is an exceptionally caring nurse with respect to patient Zenrich, and enjoys the complete trust of the patient and her family. Petitioner's witnesses attested to several instances where Respondent spoke out angrily in patient Zenrich's presence and thus, in their view, upset the patient. However, these outbursts did not disturb the patient and must be attributed to Respondent's sometimes abrupt demeanor, rather than loss of emotional control.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent from the practice of nursing until she demonstrates that she has submitted to psychiatric evaluation and/or treatment for alcohol abuse and is found capable of safely caring for medical patients by the evaluating or treating physician. DONE and ORDERED this 2nd day of January, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1985.
