Findings Of Fact In 1984, petitioner, Louise Blair, visited the Miami office of respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation (Division), for the purpose of seeking vocational rehabilitation (VR) services. Through the use of federal funds, the Division provides such services to eligible persons. Although Blair indicated she received various services in 1984 and 1985, Division records produced at hearing reflect she was not formally enrolled as a client until October, 1986. To be eligible for VR services, a person must (a) have a physical or mental disability, (b) show that the disability is a substantial handicap to employment, and (c) show that VR services would reasonably be expected to render that person fit to engage in a gainful occupation. Once a person is certified as eligible for VR services, an individual written rehabilitation program (IWRP) must be prepared by a counselor and approved by the Division. The IWRP identifies, among other things, the determination and achievement of a vocational goal. The IWRP must be reviewed annually, and it remains in effect until services are terminated or the plan is changed. Services may include counseling, medical treatment and grant funds for training in a marketable skill. Blair was classified as eligible for Division assistance due to both physical and mental disabilities. Her IWRP was reduced to writing on October 12, 1986. The plan called for business and clerical training at United Business Institute (UBI) in Miami from October, 1986 through May, 1987. Funds for the UBI tuition had already been obtained by Blair through a student grant and a federal loan program. Blair's long-term goal was to obtain a marketable skill (typing) which could then be used as an employment tool. The specific VR services to be rendered Blair were counseling by a Division counselor, eyeglasses for her failing eyesight, and payment for medication for gastric ulcers. She was also sent on one occasion to Jackson Memorial Hospital in Miami to be examined by an internist. As it turned out, Blair only stayed at UBI for about three weeks. She left because the school furnished inadequate instruction. After Blair complained to the State Department of Education, UBI gave her a full refund of her money. Blair had the money transferred to Barry College (Barry) in Miami where she enrolled as a student for one semester. She reenrolled at Barry for a second semester (spring of 1987) but was late in filling out her application for a student loan. Even though she did not obtain a loan, Blair remained at Barry for the semester without paying tuition. Barry now wants the money owed for tuition and will not allow Blair to re-enroll until it is paid. Blair accordingly requested that the Division pay for her tuition as a VR service. However, applicable federal regulations, which are binding on the Division, do not allow an IWRP to be altered after the fact or for the Division to pay for services after they are rendered. In other words, the Division cannot authorize payment for an educational service after the student has already enrolled at the college. Since Blair was enrolled in Barry before she requested a modification of her IWRP, the Division is prohibited from reimbursing Blair for her tuition. Besides needing prior authorization for a service, a client must also have a psychological evaluation performed to determine if the client would benefit from a college education. In Blair's case, an after-the-fact evaluation was made on May 4, 1988, presumably to assist the Division in countering Blair's claim. The results of the evaluation were not made a part of the record, and the counselor's testimony as to what it said is inadmissible hearsay. However, after meeting with Blair and reviewing her file, Blair's counselor made a recommendation that Blair would not benefit from a college education. At hearing Blair contended that she had a difficult time arranging an appointment to see a counselor and then having a meaningful session to develop an IWRP. This was probably attributable to the fact that her counselor was carrying a case load of 100 active clients at the time. In any event, an IWRP was prepared and signed on October 12, 1986, and was binding on the client. She also contended that she told the counselor that she was attending Barry University before her plan was prepared. Even if this was true, it was still necessary to obtain approval for tuition payment prior to enrolling at the college. Blair did not do this. Therefore, the agency properly denied her request.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for modification of her IWRP or approval for college tuition payments be denied. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of June, 1988. COPIES FURNISHED: Ms. Louise Blair 652 Northwest 100th Street Miami, Florida 33150 E. Ellen Winslow, Esquire 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Steve Barron, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
The Issue Whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged disability in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner Danette Marshall ("Marshall") was employed by Respondent Sam's East, Inc. ("Sam's Club") from October 1, 2004 to March 31, 2005. She worked at a store in Tallahassee and, at all relevant times, held the position of "greeter." The essential functions of a greeter were, then as now, constantly to (a) greet members (shoppers) and check membership cards, (b) keep the entrance area clean and organized by picking up after members and providing them with carts, and (c) resolve member concerns. It was (and is) important to Sam's Club that greeters be mobile at all times. While working on February 9, 2005, Marshall experienced such pain and swelling in her feet that she asked to leave work early to seek medical treatment. With her supervisor's permission, Marshall went to the emergency room, where she was diagnosed with bilateral plantar fasciitis and referred to a podiatrist. Marshall saw a podiatrist later that month. The evidence adduced at hearing is insufficient to make findings concerning the prescribed treatment and Marshall's prognosis.2 It is undisputed, however, that her doctor suggested Marshall should stand only for brief periods while working. Following the doctor's advice, Marshall asked her employer to either provide her with a stool on which to sit or, alternatively, transfer her to another position that would not require constant standing. Sam's Club refused to let Marshall sit on a stool while on the job because, in its view, greeters are supposed to be constantly moving about their work stations, keeping busy attending to shoppers and performing other duties. Sam's Club could not give Marshall a sedentary job because it did not have such a position available for her. Marshall's supervisor did, however, informally accommodate Marshall by letting her take an extra five-minute break most every hour, conditions permitting. Despite that, after February 21, 2005, Marshall effectively stopped coming to work, claiming inability to perform.3 In consequence of Marshall's repeated failures to report for work, Sam's Club informed her that she needed either to resume working immediately or take a medical leave of absence——and failing that, her employment would be terminated. Marshall was given a Leave of Absence form to complete and submit for approval if she were to opt for taking time off. To be eligible for a medical leave, a Sam's Club employee must obtain a certification from his or her doctor (or other health care provider) specifying, among other things, the dates during which the employee needs to be away from work. Marshall brought the Leave of Absence form to her podiatrist, who signed the document but failed fully to complete the certification, putting "X"s on the lines where the "begin leave" and "return date" information should have been inscribed. In early March 2005, Marshall submitted her Leave of Absence form. Sam's Club subsequently notified Marshall that the form was not in order because the doctor's certification was incomplete; it reminded her that leave could not be authorized unless she submitted a properly completed request. Thereafter, Marshall returned to her podiatrist and asked him to complete the required certification, but he refused to do so.4 Effective March 31, 2005, Sam's Club terminated Marshall's employment due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit and rest from time to time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Sam's Club not liable to Marshall for disability discrimination. DONE AND ENTERED this 3rd day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 3rd day of April, 2006.
The Issue Whether Respondent discriminated against Petitioner on the basis of physical handicap.
Findings Of Fact Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999. The Notice of Action/Change issued on February 18, 1999, stated: Employee was placed at maximum medical improvement with a 6% permanent impairment rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement: [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems. Brettell did not establish that she had a disability or a handicap. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer. Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2000. COPIES FURNISHED: Joyce Brettell 3743-4 Silver Lace Lane Boynton Beach, Florida 33436 Lynn G. Hawkins, Esquire Fitzgerald, Hawkins, Mayans & Cook, P.A. 515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Dana A. Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent committed a discriminatory housing practice as set out in the Notice of Determination: Cause and Issuance of an Administrative Charge dated August 27, 1996, and, if so, the relief that would be appropriate.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Commission on Human Relations is the state agency charged with investigating complaints of discriminatory housing practices and enforcing Florida's Fair Housing Act. Sections 760.30-.35, Florida Statutes. In 1981, the Florida Fair Housing Act was declared the substantial equivalent of the Federal Fair Housing Act, 42 U.S.C. Section 3601 et seq. Consequently, since 1981, the Commission has been charged with investigating fair housing complaints for both itself and the Department of Housing and Urban Development. Burgundy I is one of over 100 buildings comprising King's Point, a condominium complex located in Delray Beach, Florida. Burgundy I is a two-story building, with 24 condominium units on the first floor and 24 units on the second floor. The only access to the second-floor units is by stairs, and there are four stairways leading to the second floor, one on each end of the building and two spaced closer to the center of the building. The owner of a condominium unit in Burgundy I owns the space within the interior walls of the unit and an undivided interest in the common area associated with the building.1 All unit owners are members of the Burgundy I Condominium Association, a not-for-profit corporation governed by a Board of Directors ("Board") elected by the members. The affairs of Burgundy I are governed by the Burgundy I Declaration of Condominium and by the Articles of Incorporation and By-Laws of the Association. Burgundy I is also subject to Florida's Condominium Act, Chapter 718, Florida Statutes. Hyman and Ruth Tobin purchased a condominium unit in Burgundy I in 1981. Mr. and Mrs. Tobin live six months each year in their condominium unit and six months each year in their home in Marblehead, Massachusetts. They generally arrive in Florida in the first part of November and move back to Massachusetts in the first part of May. They have followed this pattern for the past ten years. Mr. and Mrs. Tobin own and reside in unit 419, on the second floor near the center of the Burgundy I building; the only access to their unit is by the stairs. In 1990 or 1991, Mr. Tobin was diagnosed with Parkinson's disease, which has become progressively worse since it was diagnosed. He also has an undiagnosed neuromuscular condition, and, in 1995, he suffered a small stroke. These conditions have resulted in Mr. Tobin's having extreme difficulty ambulating, even with the aid of a cane or a walker; this difficulty is obvious to the casual observer. Mr. Tobin's ability to ambulate is not expected to improve, and the parties have stipulated that Mr. Tobin is handicapped for purposes of Florida's Fair Housing Act. As a result of his handicap, it is very difficult for Mr. Tobin to go up and down the stairs, and he restricts his activities as a result. Although he is supposed to exercise in the swimming pool several times a week, he does not do so because of the difficulty he has negotiating the stairs. On several occasions, he has almost fallen on the stairs. In late 1994 or early 1995, Mrs. Tobin discussed with Jay Carron the feasibility of installing some type of device to assist Mr. Tobin in reaching the second floor of Burgundy I. Mr. Carron is certified by the state to install, maintain, and inspect elevators, and he owns Palm Beach Lifts, Inc., a state- registered elevator company that specializes in installing elevators and wheelchair lifts. Mr. Carron visited Burgundy I several times to evaluate the best means of providing Mr. Tobin access to the second floor of Burgundy I. The Tobins ruled out an elevator because it was too expensive. Mr. Carron investigated the feasibility of installing a chair lift on the stairs but, after taking measurements, decided that it would block egress and would not meet code requirements. He also considered the feasibility of installing a vertical wheelchair lift to the second floor of the building and determined that this alternative would meet Mr. Tobin's needs. He recommended either a hydraulic-drive or a screw-drive, free-standing lift. Mr. Carron has installed approximately 30 wheelchair lifts, and the units he recommended to the Tobins are commonly installed in shopping malls, nursing homes, office buildings, and condominiums, among other commercial and commercial/residential structures. Mr. Carron provided Mrs. Tobin with a copy of the industry standards for vertical wheelchair lifts and a copy of product information on the lift systems he recommended. He also provided her with a copy of his county occupational license, his state certificate of competency, his company's state registration, and his certificate of liability insurance. Both of the lifts Mr. Carron recommended accommodate a wheelchair and two people, although the hydraulic lift is the larger of the two units. A source of 110 to 220 volts of electricity is needed to operate the lift. Both of the lifts are free-standing and rest on a concrete slab that is six feet square. Mrs. Tobin and Mr. Carron discussed three potential locations for the lift: On the garden side of the building near the Tobins' unit; on the parking-lot side on a blank wall outside the bedroom of the unit directly underneath the Tobins' unit; and on the garden side, in the exact center of the building, where there would be convenient access to electricity. Mr. Carron also considered installing the lift so that it would open directly into the Tobins' unit. Regardless of which location is chosen, the lift will alter the common area of Burgundy I. If the lift were to open onto the walkway on the second floor, it would be necessary to cut through the railing to install a door leading from the lift to the walkway; if the lift were to open directly into the Tobins' unit, it would be necessary to cut through the wall of the unit. When he first spoke with Mrs. Tobin two years ago, Mr. Carron estimated that it would cost approximately $12,000 to install a wheelchair lift that would open onto the second-floor walkway. Shortly after she was given this estimate, Mrs. Tobin opened a bank account with her funds in the amount of $20,000 to pay for the installation of the lift and initial maintenance expenses.2 Mrs. Tobin later learned that it would cost approximately $3,000 more to install the lift to open directly into the Tobins' unit. The Tobins have not yet chosen a location for the lift. Mrs. Tobin believes that there will be opposition from many of the unit owners regardless of where the lift is located. In late 1994, Mrs. Tobin spoke informally to her second-floor neighbors about her intention to install a wheelchair lift; at about the same time, Mrs. Tobin told Harry Pulik, the president of the Association, about her proposal. Mr. Pulik's response to the proposal was very negative. Mrs. Tobin felt that he misunderstood what she wanted to do and asked that he call a meeting of the Association's Board of Directors so she could explain the proposal before the board. Mr. Pulik and other board members routinely put items on the agenda for a board meeting with nothing more than a verbal request from a unit owner.3 Notwithstanding this established practice, Mr. Pulik refused to call a board meeting to discuss Mrs. Tobin's request for a wheelchair lift. Sometime in late December 1994, Mr. Pulik attempted to contact the building inspector concerning whether a wheelchair lift could even be installed at Burgundy I; Mrs. Tobin was present when Mr. Pulik telephoned the inspector. He was on Christmas vacation, however, and was scheduled to return on January 3. Mrs. Tobin asked Mr. Pulik on January 4 if he had reached the building inspector. He told her he had not received a return call, and she never heard anything more from him on this matter. Meanwhile, Mrs. Tobin prepared a letter to her neighbors dated December 28, 1994, and hand-delivered it to the owners of Burgundy I condominium units who were in residence; she sent the letter by mail to those owners who were not in residence at the time. In the letter, Mrs. Tobin stated that "we" would like to install a hydraulic wheelchair lift for the use of the tenants of the building, that she and Mr. Tobin would pay for the installation of the lift, and that any neighbor wishing to use the lift could purchase a key for a one-time fee of $2,000 if paid before construction or $2,500 if paid after construction. Mrs. Tobin explained in the letter that the money raised from the key purchases would be used to help defray some of the costs of the lift and to fund on-going costs such as maintenance, utilities, repairs, and insurance. Mrs. Tobin did not send a copy of this letter to the board as a formal proposal, nor did she, at this time, formally advise the board that she wished to install a wheelchair lift. She knew, however, that the members of the board were aware of her plans because they were among the neighbors to whom she sent the December 28 letter. Mrs. Tobin followed up the December 28 letter in the latter part of January 1995 by taking a survey of her neighbors. The survey sheet listed the unit numbers and names of the owners of the Burgundy I condominium units. In the preface to the survey list, Mrs. Tobin wrote: "This is to inform you that we plan to install a wheelchair lift in the Burgundy I condominium, so that my husband and all upstairs participating neighbors can fully enjoy our premises."4 The survey sheet was divided into four columns, and Mrs. Tobin requested that each neighbor initial one column, specifying that "I do not object," "I will participate," or "I do object"; if anyone objected, Mrs. Tobin requested that they state the reason in the fourth column. According to the results of the survey, twenty-four owners did not object, nine second-floor owners stated that they wished to participate, five owners objected, and ten owners refused to sign, could not be reached, or were unsure. A short time after she gathered these responses, Mrs. Tobin had a meeting in her unit with the owners who had indicated that they wished to participate by purchasing a key to the lift. At this meeting, she discussed her proposal in detail. She did not, however, discuss the proposal in detail with any other neighbors. Because no action had been taken on her request for a meeting of the Association's Board of Directors, Mrs. Tobin filed the Housing Discrimination Complaint with the Commission on February 22, 1995.5 This complaint initiated the investigation that resulted in the discrimination charges. On March 3, 1995, a meeting was held with Ron Raible, a representative of Prime Management Group, the company that is under contract with the Association to provide management services to Burgundy I. The meeting was requested by Mrs. Tobin and attended by Mrs. Tobin and by Salvatore Amato, another resident of Burgundy I who has long been interested in installing some type elevator or lift to provide vertical accessibility to the second floor of Burgundy I. Mr. Carron also attended the meeting and gave Mr. Raible a copy of the materials he had earlier presented to Mrs. Tobin. Mr. Raible expressed his satisfaction that these documents were in order. Mr. Carron explained the lift and the process of installation to Mr. Raible. Additionally, Mr. Amato gave Mr. Raible a drawing he had done, which purported to show, to scale, the lift's dimensions in relation to the features of the condominium building at one of the locations under consideration. The drawing is not, however, to scale, and the open area in which the 6' x 6' concrete slab is shown is actually much smaller than it appears in the Amato drawing. Mr. Raible prepared a memorandum to Mr. Pulik dated March 10, 1995, in which he reported on the March 3 meeting. Mr. Raible stated that the issues were discussed in a "very amicable, cooperative, and positive mood"; that the plan was to install a lift not an elevator; that a bank account had been established in the amount of $20,000 to fund installation of the lift; that the results of a survey taken by Mrs. Tobin showed that thirty-two owners did not object to installation of the lift; and that Mr. Carron "was quite informed and apparently has done his homework with respect to the lift and how the county would view the installation along with the counties [sic] requirements." Mr. Raible also reported in this memorandum that the location of the lift was discussed, and Mr. Raible identified the location as between first-floor units 394 and 397.6 Mr. Raible also reported that he discussed financial responsibility for the lift with Mrs. Tobin and that he had made specific suggestions to her regarding access to the lift and responsibility for the costs associated with its operation, "pending conformation [sic] of attorneys from both sides." Finally, Mr. Raible advised Mr. Pulik that he should not act on the wheelchair lift proposal until a response to the discrimination complaint was received from the Commission; that he should not talk about the proposal with any unit owner or with any member of the board in open meeting; and that he should familiarize himself with the information provided by Mr. Carron concerning the lift unit itself. In Mrs. Tobin's view, she presented her formal proposal for the wheelchair lift to Mr. Raible, as an agent for the Association, at the March 3, 1995, meeting, and she had no reason to think that the proposal was not complete because Mr. Raible did not ask her for any additional information at or after the March 3 meeting. As of March 24, 1995, the board still had not met to discuss Mrs. Tobin's request to install a wheelchair lift. On that date, in a letter signed by Mrs. Tobin and seven other condominium owners, Mr. Pulik, in his capacity as president of the Burgundy I Condominium Association, was asked to call a meeting of the Board of Directors of Burgundy I, to be held within ten days of the request, for the purpose of discussing the necessity for installing a vertical wheelchair lift at Burgundy I. On April 2, 1995, a properly noticed board meeting was held by the condominium mailbox for the stated purpose of deciding whether to hire an attorney to advise the board with regard to the complaint filed with the Commission by Mrs. Tobin. The board decided at the meeting to hire the law firm of Sachs and Sax for this purpose. There was, however, no discussion by the board relating to the substance of the request that the Tobins be permitted to install a wheelchair lift. Nonetheless, a survey dated April 2, 1995, was taken of the Burgundy I unit owners, and a majority signed a statement attesting "that we are opposed to the installation of a lift/elevator including the maintenance, insurance expenses, and like expenses including any and all liabilities likely to be incurred." A notice dated April 25, 1995, was posted in which the Association's Board of Directors notified all Burgundy I unit owners of a special board meeting to be held May 18, 1995, to discuss the request for a wheelchair lift. The agenda included on the notice indicated that the purpose of the meeting was to discuss the "discrimination claim," and it was noted that "THE ATTORNEY WILL ATTEND THIS MEETING FOR THE PURPOSE OF DISCUSSION." A detailed "Proposed Agenda for Discussion" included a series of questions under the headings of "Feasibility of Installation of Lift at Burgundy I" and "Procedures for Approval of Lift Installation."7 Mr. and Mrs. Tobin did not attend the May 18 meeting. As they had done every year since 1981, the Tobins had returned to Massachusetts in early May. Because of Mr. Tobin's health, Mrs. Tobin could not leave her husband to travel to Florida for the board meeting. Although there was general discussion of the wheelchair lift at the May 18 board meeting, there was no discussion of the specific items included in the proposed agenda because much of the information could only have been provided by the Tobins. Consequently, no action on the request for installation of a wheelchair lift was taken by the board at the May 18 meeting because the board wanted more information regarding the Tobins' proposal. A board meeting was held March 4, 1997, a month before the final hearing in this case, and Mrs. Tobin and her daughter attended. At least one of the board members asked questions of Mrs. Tobin regarding her proposal, which she refused to answer. Pursuant to paragraphs 2.7 and 9 of the Burgundy I Declaration of Condominium, the owners of all of the units in Burgundy I are liable to pay assessments to cover the common expenses of the condominium and of the Association, and these common expenses include expenses for "insurance, maintenance, operation, repair and replacement of the common elements . . . and other common facilities of the Project." Pursuant to Section 7.5 of the Declaration of Condominium, as amended effective December 31, 1981, the entire membership must approve in writing any alteration to the common elements: Alteration and improvement. After the completion of the improvement included in the common elements contemplated by the Declaration, there shall be no alteration nor further improvement of common elements or acquisition of additional common elements without prior approval in writing by the record owners of all of the units; provided, however, that any alteration or improvement of the common elements or acquisition of additional common elements bearing the approval in writing of the record owners of not less than 50% of the common elements, and which does not interfere with the rights of any owners without their consent, may be accomplished, and the owners who do not approve are not relieved from the cost of the alteration, improvement or acquisition. Pursuant to paragraph 3.3 of the Association's By-laws, a special meeting of the membership of the Association may be called at the request of a majority of the Board of Directors or at the written request of a majority of the unit owners. SUMMARY OF THE EVIDENCE Mr. Tobin is disabled and the evidence presented by the Commission is sufficient to establish that some type of vertical accessibility device is necessary to allow him the full enjoyment of his condominium unit and the facilities at Burgundy I. The evidence presented by the Commission is also sufficient to establish that a wheelchair lift is a reasonable device for providing Mr. Tobin access to and from his second- floor unit. The evidence presented by the Commission is also sufficient to prove that the Association refused to permit the Tobins to install a wheelchair lift at Burgundy I. Installation of a wheelchair lift would necessarily alter a portion of the common elements. Consequently, depending on whether the proposal would potentially interfere with the rights and obligations of any of the unit owners without their consent, the proposal must be approved in writing either by all of the Burgundy I condominium unit owners or by fifty percent of the unit owners. Since the Association's Board of Directors has never formally presented the Tobins' request to the unit owners, the request has technically never been refused. Nonetheless, even if the board thought the Tobins' proposal to install a wheelchair lift was ill-advised or incomplete, the proposal should have been presented to the Association's membership for discussion and a vote at a special membership meeting called for that purpose. The Association's board has not, however, called such a meeting. Therefore, even though it cannot approve the Tobins' request to install a wheelchair lift, the board, acting on behalf of the Association, effectively refused to permit the modification by its inaction. The evidence presented by the Commission is not, however, sufficient to establish that the Tobins' proposal to install a wheelchair lift in the common elements of Burgundy I constitutes a reasonable modification to the premises. The Tobins have not chosen the site where they wish to install the lift. The lift's location is an important factor in determining whether the proposed modification to the condominium premises is reasonable. The installation of a wheelchair lift will affect the Burgundy I unit owners and, most especially, those persons who own units near the lift, and the impact on their rights to enjoy the premises should be considered. The evidence presented by the Commission is, likewise, not sufficient to establish that the modification proposed by the Tobins will be undertaken at their expense. All the unit owners of Burgundy I are responsible for paying their pro rata share of the expenses of maintaining the common elements of the condominium and of any other costs related to their ownership of an undivided interest in the common elements. As a result, for the modification to be at the Tobins' expense, their proposal must shield the unit owners from liability for any of the expenses relating to the installation and operation of the wheelchair lift. Mrs. Tobin testified at the final hearing that she intends to pay the entire cost of installing the lift and stated her willingness to pay for an annual service contract covering minor maintenance, for annual inspections, and for electricity. She also testified that she will purchase whatever insurance is necessary. She believes these costs will be minimal, although she does not know how much insurance will cost. She will not, however, commit to assuming sole responsibility for the expense of major maintenance on the lift because she believes that she cannot afford to pay these costs. Rather, it is, and has been, her plan to offer her neighbors the opportunity to purchase a key allowing access to the lift, with the proceeds from the sale of keys being set aside as a maintenance fund. There is, however, no evidence to establish, for example, that the Tobins will collect enough money from the sale of keys to the lift to create a viable maintenance fund; or that they have a contingency plan for providing for payment of maintenance expenses if the balance in the maintenance fund is insufficient to cover the expenses; or that they have made arrangements for purchasing the service contract and paying for inspections, electricity, and insurance if they cannot afford to pay these costs or if they no longer need the use of the lift.8 In addition, there is no evidence that the Tobins have made provision in their plan to install a wheelchair lift for shielding the Burgundy I unit owners from liability for costs and expenses arising out of the installation and use of the lift. The Commission has, therefore, not sustained its burden of proving that the Association has violated Florida's Fair Act Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Notice of Determination charging the Burgundy I Condominium Association with a violation of the Florida Fair Housing Act. DONE AND ENTERED this 12th day of November, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1997.
Findings Of Fact Noah E. Ramos was born on October 9, 2014, at Winnie Palmer Hospital in Orlando, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Noah’s medical records. In a medical report dated February 3, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, spontaneous vaginal delivery resulted in a depressed newborn. Cord blood gas was within normal limits, suggesting there was no significant oxygen deprivation during labor. There was no detectable heart beat at birth. The baby responded to resuscitation after birth, but respiratory distress worsened about 2 hours after birth. The baby became acidotic (pH 6.92) and required intubation. MRI showed a subarachnoid hemorrhage and ischemia. The baby was diagnosed with HIE. There was an apparent obstetrical event that resulted in oxygen deprivation and some degree of brain injury at birth and in the post delivery period. I am not able to comment about the severity of the brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated May 2, 2016. Dr. Willis’ opinion that there was an obstetrical event that resulted in oxygen deprivation and some degree of brain injury at birth is credited. Respondent retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to evaluate Noah. Dr. Sigurdardottir reviewed Noah’s medical records, performed an independent medical examination on him on November 11, 2015, and subsequently reviewed additional medical records, on February 22, 2016. Dr. Sigurdardottir made the following findings and summarized her evaluation as follows: Summary: Here we have a youngster with evidence of neonatal asphyxia mainly by his Apgar score of 0 at 1 minute, although rapid improvement is noted with 6 at 5 minutes, 8 at 10 minutes. His mother does report a 1 month long NICU stay but records indicate discharge on 10/22. Regardless of his early medical history, he is now age appropriate in both cognition, visual maturity and motor skills. Result of question 1: The patient is found to have no permanent substantial physical or motor impairment. Result of question 2: There is evidence of complications during Noah’s birth that could have resulted in hypoxic neurologic injury. There is, however, no clear evidence in the history to suggest that his low Apgar scores are secondary to any prenatal abnormality and is, therefore, felt to be [the] result of perinatal oxygen deprivation. Result of question 3: We would expect full life expectancy. In light of the above-mentioned details and the fact that Noah has no current signs of neurologic sequelae, I do not recommend Noah to be included into the Neurologic Injury Compensation Association (NICA) program and would be happy to answer additional questions. Dr. Sigurdardottir reaffirmed her opinions in an affidavit dated April 29, 2016. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Dr. Sigurdardottir’s opinion that Noah does not have a substantial physical or motor impairment is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Sigurdardottir that Noah does not have a substantial physical or motor impairment.
The Issue Whether the Department of Children and Family Services (Department) improperly denied funds to Felicita Cruz for the purchase of a specialized wheelchair.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following relevant findings of fact are made: The Department is the agency in the State of Florida charged with the responsibility of administering the Developmental Services Program, pursuant to Chapter 393, Florida Statutes. Petitioner, Felicita Cruz, is a twenty-six-year-old woman who is developmentally disabled. Petitioner has Rett Syndrome, a neurological disorder, and, as a result thereof, she is mentally retarded, has scoliosis and is unable to walk and talk. Due to Petitioner's lack of mobility, she must be regularly repositioned by someone. About fourteen years ago, Petitioner had surgery to alleviate some of the physical problems associated with her scoliosis. At or near the time of the surgery, a rod was placed in Petitioner's spine. Currently, Petitioner does not have a wheelchair, but she does have a stroller. Petitioner's stroller is several years old, does not meet her needs, and is no longer appropriate. There is no dispute that Petitioner needs a specialized fitted wheelchair. Petitioner's Waiver Support Coordinator/Case Manager for about four years stated the following in a letter dated September 3, 2002: Around February of 2002, I was asked for the case file to be handed back in to Developmental Services. Even though, [sic] I currently have no professional responsibility for this case, I am asserting my opinion that Ms. Cruz has need of a specialized, fitted wheelchair, conducive to her progressive spinal deformation. Also, due to her lack of initiative and inability to ambulate without intensive support, a wheelchair is primary for her mobility concerns. Without appropriate fitted physical support, her spinal condition can worsen, and cause more severity and progression with her disability. A letter dated September 3, 2002, from the occupational therapist who works with Petitioner at Tandem Healthcare of Kissimmee, the nursing home where Petitioner resides, also indicates that Petitioner needs a specialized wheelchair. The letter states in relevant part the following: [B]ecause of her disability, Felicita Cruz requires a specialized wheelchair. Presently she is in a stroller. This is inappropriate for the following reasons: It is the same stroller she has had for many years. Her needs have changed and should be addressed. She has sclerosis [sic] and requires a wheelchair which will be more supportive of her back. She slides out of the stroller, and this presents a safety risk. Ms. Cruz requires a specialized wheelchair which will improve both her physical well being, and increase safety in her current environment. Petitioner became a consumer of the Developmental Services Program in 1999 and was deemed eligible for the Department's Developmental Services Home and Community-Based Waiver Program ("Home and Community-Based Waiver Program"). Subsequently, in 2000 or early 2001, Nilda Cruz requested a specialized wheelchair for Petitioner. When this request was made, Petitioner was living at home with her mother, who was her primary caregiver. Apparently, in response to Nilda Cruz's request and upon the Department's determination that Petitioner needed a specialized wheelchair, Petitioner's Department-assigned case worker took steps to assist Petitioner with obtaining a specialized wheelchair. In February 2001, Petitioner was being fitted for a specialized wheelchair, through the Home and Community-Based Waiver Program. However, during this time and prior to the Department's purchasing the specialized wheelchair for Petitioner, her health declined and she was hospitalized from late March 2001 until April 4, 2001. After being released from the hospital, upon the advice of Petitioner's physician, on or about April 5, 2001, Petitioner was placed in a nursing home. Prior to Petitioner's being placed in a nursing home, she remained eligible for the Home and Community-Based Waiver Program. Based on that eligibility, the specialized wheelchair could have been funded by the Home and Community-Based Waiver Program. However, after Petitioner moved to a nursing home, she was ineligible for the Home and Community-Based Waiver Program and any services or equipment funded by that program. Although Petitioner is no longer eligible for the Home and Community-Based Waiver Program, she continues to be a client of Developmental Services and is eligible for services and equipment authorized under that program. There are no funds available in the general revenue category of the Developmental Services' budget and none have been allocated. Due to the lack of funds, the Department was unable to purchase the specialized wheelchair that Petitioner needs and, accordingly, it denied Petitioner's request for the wheelchair. In an effort to assist Petitioner, Department employees and Nilda Cruz met with the administrator of Tandem Healthcare, the nursing home at which Petitioner resides, to request that the nursing home purchase the specialized wheelchair for Petitioner. The administrator agreed to purchase a regular wheelchair at a cost of between $400.00 to $700.00, but not the specialized wheelchair that would cost an estimated $2,000.00.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order that denies Petitioner's request for the specialized wheelchair, unless and until general revenue funds or other appropriately designated funds are available for such purpose. DONE AND ENTERED this 20th day of November, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 20th day of November, 2002. COPIES FURNISHED: Felicita Cruz c/o Nilda Cruz 2605 Quail Pond Way Kissimmee, Florida 34743 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., 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 issues for determination in this proceeding are whether Respondent discriminated against Petitioner on the basis of a handicap, within the meaning of Section 760.10, Florida Statutes (2002), and whether the same alleged discrimination violated Section 448.045, Florida Statutes (2002).
Findings Of Fact Petitioner is a handicapped person. Petitioner is bipolar and has episodes of psychosis and occasional ideations of suicide and homicide. On January 14, 2003, Petitioner returned to work after an extended vacation, during which he suffered a psychotic episode and was diagnosed with his handicap. Respondent scheduled an in-office hearing, identified in the record as a "fit-for-duty hearing," because Respondent was concerned for the safety of Petitioner and other employees. Respondent denied Petitioner's request to postpone the hearing for one day to allow Petitioner to get back into "the swing of work routine." Petitioner requested 30 days of accrued personal leave. Respondent granted the request, and Petitioner was due back on the job on February 18, 2003. At the conclusion of the 30-day leave, Respondent granted Petitioner's request for medical leave. The medical leave began on February 18, 2003, and Petitioner was scheduled to return to work on July 3, 2004. Respondent's policy requires every employee that is on medical leave, including Petitioner, to be certified by a physician that the employee is fit to return to work, with or without reasonable accommodation. A physician's certification is a prerequisite for any employee on medical leave to return to his or her job after medical leave. During Petitioner's medical leave, Petitioner sought treatment from several physicians. As of the date of the administrative hearing, no doctor had certified Petitioner as fit to return to work because Petitioner consistently refused to take medication prescribed for his handicap. After going on medical leave, Petitioner received short-term disability benefits and, at the time of the administrative hearing, was receiving long-term disability benefits. The long-term benefits were scheduled to expire in August 2005. Petitioner is not contractually entitled to long- term disability benefits unless Petitioner is unable to perform all of the material and substantial duties of his regular occupation. When Petitioner's medical leave ended on July 3, 2004, Petitioner was not medically certified as fit to return to work. Petitioner refused to take medication prescribed for his condition and continued to receive long-term disability benefits. Respondent refused to accommodate Petitioner any further with additional leave. Respondent terminated Petitioner's employment on July 3, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not unlawfully discriminate against Petitioner by convening a "fit-for-duty hearing" or by subsequently terminating Petitioner's employment. DONE AND ENTERED this 21st day of December, 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 21st day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman K. Wright 826 Grand Cayman Court Orlando, Florida 32835 J. Lester Kaney, Esquire Cobb & Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent, Fresenius Medical Care (Fresenius), discriminate against Petitioner, David E. McDonald, in employment on account of his disability? Did Fresenius discriminate against Mr. McDonald in employment on account of his age?
Findings Of Fact Mr. McDonald worked for Fresenius as a social worker in its Sebring, Florida, facility. Fresenius provided Mr. McDonald family and medical leave because of back and knee problems. After Mr. McDonald exhausted the available leave, Fresenius granted him non-FMLA medical leave. Because of his continuing health problems, Mr. McDonald obtained long-term disability benefits in 2013 under a plan provided by CIGNA and sponsored by Fresenius. Mr. McDonald was 79 years old. Mr. McDonald’s testimony established that he received one year of benefit payments under the plan. On August 29, 2013, Mr. McDonald wrote Fresenius a letter identified as regarding “L.T.D. approval.” The first three paragraphs stated: On Saturday 7/27/13, I received a copy of the letter dated 7/19/13 sent to you by Ryan Zech, of CIGNA, informing you that my “claim for Long Term Disability was approved, benefits starting on 8/07/13.” This means, barring the time it takes for me to reconcile my affairs with our H.R Dept. that my employment with F.M.C. has come to an end. I had hoped that my medical condition would have improved, such that I would have been able to perform effectively, the required percentage of my duties to qualify to return to F/T employment. This has not turned out to be the case. It is therefore with mixed sentiments that I accept the medical decision/s of CIGNA and my attending physicians including my “Eye specialists." This letter stated Mr. McDonald’s voluntary decision to end his employment with Fresenius. Mr. McDonald did not present evidence that the decision was coerced or even encouraged by any representative of Fresenius. Mr. McDonald voluntarily terminated his employment with Fresenius. Mr. McDonald does not maintain that Fresenius discriminated against him on account of age or disability. He testified repeatedly and clearly that he does not claim that Fresenius discriminated against him in any way on account of his age or physical condition. Mr. McDonald bases his complaint upon his assertion that CIGNA representative Mr. Zech did not properly advise him that the long-term disability policy provided only one year of payments. Mr. McDonald also did not present any evidence that could support an inference that Fresenius discriminated against him on account of his age or a disability. Mr. McDonald did not argue or present evidence that CIGNA employee Ryan Zech was an employee or agent of Fresenius.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of David E. McDonald. DONE AND ENTERED this 13th day of May, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 13th day of May, 2015.
The Issue As to case 89-3568BID, whether the bid protest filed by B & L Service, Inc., shall be upheld. As to case 89-3569BID, whether the bid protest filed by AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, shall be upheld.
Findings Of Fact On April 7, 1989, Respondent, Department of Health and Rehabilitative Services (DHRS), published and issued a Request for Proposals (RFP) which solicited proposals for the provision of twelve identified categories of transportation services to Medicaid recipients in DHRS District X. DHRS issued the RFP because it did not want to award the contract primarily on the basis of price. The purpose of the RFP was to solicit proposals which evidenced a demonstrated capability and reliability for providing cost-effective, courteous and prompt transportation services to transportation disadvantaged Medicaid recipients in District X to and from medical appointments and Community Mental Health services. The RFP identified twelve transportation categories which would be the subject of the contract to be awarded. The categories were designated by the letters a-1. Petitioner, B & L Service, Inc. (B & L Service), and Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation (AAA Wheelchair) submitted proposals that were accepted and evaluated by DHRS. Petitioner, B & L Service timely protested the award to AAA Wheelchair of the categories of service identified in the RFP as category f. and category This protest forms the basis for Case 89-3568BID. Petitioner, AAA Wheelchair timely protested the award to B & L Service of several categories of service for which both AAA Wheelchair and B & L Service had submitted proposals. This protest forms the basis for Case 89-3569BID. An evaluation committee consisting of four DHRS employees and one employee of the Florida Department of Transportation was appointed to evaluate the different proposals. The RFP advised all parties that the evaluation committee's recommendations would be reviewed by the District Administrator who would make the final determination. The evaluation committee analyzed each proposal using the rating sheet that was included as a part of the RFP. The following categories and point values were used to analyze each proposal: Response to Statement of Purpose/Need Project Understanding - 10 points Method of Service Provision - 20 points Demonstrated Organizational Capability - 10 points Rate Analysis - 10 points Categories f. and g. are as follows: Demand-responsive wheelchair transpor- tation requested at least 24 hours prior to the provision of service: approximately 800-1000 trips per month Demand-responsive wheelchair transpor- tation requested less than 24 hours prior to the provision of service: approximately 15-30 trips per month The evaluation committee reasonably determined that it should recommend one provider for categories f. and g. to avoid unnecessary confusion for the recipients of the respective services. Category f., which would involve between 800-1000 trips per month, was a more significant category than category g., which would involve 15-30 trips per month, in terms of number of persons served and the amount of money involved. It was reasonable for the winner of category F. to be awarded category g. The evaluation committee awarded B & L Service the following points for category f.: Category I: 45 Category II: 85 Category III: 27 Subtotal: 158 Category IV. 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category f.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 38 Grand Total 204 The evaluation committee awarded B & L Service the following points for category g.: Category I: 45 Category II: 86 Category III: 27 Subtotal: 158 Category IV: 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category g.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 32 Grand Total 198 B & L Service and AAA Wheelchair received the same number of total points for category f. The evaluation committee voted to break the tie for category f. between B & L Service and AAA Wheelchair. By a vote of 4 to 1, the evaluation committee voted to recommend that B & L Service be awarded the contract for category f. and, consequently, for category g. There was no justification or explanation given by the committee for its vote. The procedures under which the committee was operating did not provide for a vote in the event of a tie. B & L Service proposed to perform the services required for categories f. and g. for $14.70 per trip while AAA Wheelchair proposed to provide the services for category f. for $15.00 per trip and the services for category g. for $16.00 per trip. The lower price proposed by B & L Service enabled it to score higher than AAA Wheelchair in category g. and to tie AAA Wheelchair in category f. AAA Wheelchair scored higher than B & L Service in categories I-III of categories f. and g., the areas designed to evaluate the provider's ability to deliver quality service. Paul V. Freedlund, the District Administrator for DHRS District X delegated to Carmen Gutierrez, the Acting Deputy District Administrator for DHRS District X, the responsibility to review the RFP process to ensure its validity. Ms. Gutierrez was instructed by Mr. Freedlund to recommend the providers she considered most capable of performing the contracts for the respective categories of service based on the information that was available to her. Ms. Gutierrez delegated to Nancy Porter, the Medicaid Program Administrator for DHRS District X, the responsibility to review the RFP process and to make a recommendation as to which provider should receive the award for categories f. and g. Ms. Porter was also told to justify her recommendation. B & L Services had been the provider of the services required by categories f. and g. during the 1988-1989 DHRS fiscal year. AAA Wheelchair had been the provider of the services required by categories f. and g. for several years immediately preceding the 1988-1989, DHRS fiscal year. During their respective periods of performance, DHRS monitored their performances and maintained monitoring reports which reflected any deficiencies in the performances. Mr. Freedlund told both Ms. Gutierriez and Ms. Porter that because of the close scores any monitoring reports for the competing providers should be reviewed and to go with the provider they felt was better able to render the service effectively. Nancy Porter, pursuant to the instructions she had received, reviewed the proposals submitted by B & L Service and by AAA Wheelchair, reviewed the evaluation committee's work, and reviewed the monitoring reports of B & L Service for the period it performed the subject services and the monitoring reports of AAA Wheelchair for the period it performed the subject services. Nancy Porter recommended that AAA Wheelchair be awarded the contract for the category f. and the category g. services. In her memo to Paul Freedlund dated June 2, 1989, she justified her recommendation to award the category f. and category g. services, together with other categories of service that are not being contested, as follows: Based upon monitoring reports, past performance under prior contracts and response to the RFP, this provider appears to have the ability to provide the quality of services required in the bid specifications, thereby making them the most advantageous to the state and the lowest qualified bidder. Nancy Porter's recommendation to Paul Freedlund was that B & L Service be awarded five of the twelve categories of service and that AAA Wheelchair be awarded the other seven categories of service. Paul Freedlund accepted Nancy Porter's recommendation. These protests followed the announcement of the intended awards. B & L Service's protest is based, in part, on contact between Nancy Caputo, president of AAA Wheelchair, and DHRS after the evaluation committee had met, but before the intended final decision was made. B & L Service's protest is also based on DHRS not following the recommendations of its committee as to categories f. and g. On May 17, 1989, Vera Sharitt, the DHRS contract manager for Medicaid transportation, wrote Nancy Porter advising her of the evaluation committee's results and recommendations. On May 18, 1989, Nancy Porter prepared a memo to Paul Freedlund which erroneously stated that B & L Services had received the highest points from the evaluation committee for category f. as well as category g. On May 19, 1989, Karen Caputo received a copy of Nancy Porter's memo dated May 18, 1989. Karen Caputo telephoned Nancy Porter, advised that an error had been made in the memo of May 18, 1989, and proceeded to tell Nancy Porter that her company could provide much better services than could B & L Service. Karen Caputo was upset when she called Nancy Porter. Nancy Porter listened and agreed to correct the error in her memo to reflect that there had been a tie in points for category f. instead of B & L Service being the point winner. On May 23, 1989, Nancy Porter prepared a second memo to Paul Freedlund which corrected the error in her memo of May 18, 1989. On May 23, 1989, Karen Caputo wrote Paul Freedlund a letter which discussed the merits of her proposal and the higher quality of service that had been provided by her company as compared to B & L Service. Her letter also asserted that B & L Service had the financial ability to offer lower prices than her company and also asserted that her company was a minority owned business. The contact Karen Caputo had with the DHRS employees occurred before Mr. Freedlund instructed Ms. Gutierrez and Ms. Porter to review the RFP process and to make a recommendation since the scores awarded by the evaluation committee were so close. Karen Caputo's contact resulted in the correction of the error in the memo of May 18, 1989. The contact Karen Caputo had with the DHRS employees did not, however, unduly influence their recommendations and did not constitute an unfair interference with the contract award process. The protest of AAA Wheelchair is based on its assertion that B & L Service was not a qualified proposer and that its response to the RFP was deficient. B & L Service's performance of the f. and g. categories of service for the fiscal year 1988-1989 did not disqualify it as a proposer. While a number of deficiencies were noted in the monitoring reports for this period of time, DHRS had taken no steps to disqualify B & L Services as a proposer. B & L Service was a qualified proposer. The response to the RFP submitted by B & L Service was not deficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3568BID a Final Order which denies the bid protest of Petitioner, B & L Service, Inc. IT IS FURTHER RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3569BID a Final Order which denies the bid protest of Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation. DONE AND ENTERED this 8th day of September, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer 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 September, 1989. Appendix to the Recommended Order in Consolidated Cases 89-3568BID and 89-3569BID PETITIONER'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of B & L Service, Inc., are addressed as follows: The proposed findings of the first paragraph are addressed in paragraphs 1 and 4. The proposed findings of the second paragraph are rejected as being unnecessary to the results reached. The proposed findings of the third paragraph are addressed, in part, in paragraphs 1 and 2 and are rejected in part as being unnecessary to the results reached. 4 -5. The proposed findings of the forth and fifth paragraphs are rejected as being unnecessary to the results reached. The proposed findings of the sixth paragraph are subordinate to the findings of paragraph 5. The proposed findings of the seventh paragraph are addressed in paragraph 8. The proposed findings of the eighth paragraph are addressed in paragraph 9, 10, 12, 13, and 16. The proposed findings of the ninth paragraph are addressed in paragraph 11 and 16. The proposed findings of the tenth paragraph are addressed in paragraph 24. The proposed findings of the eleventh paragraph are addressed in part in paragraph 25 and are rejected in part as being contrary to the weight of the evidence. The proposed findings of the twelfth paragraph are addressed in part in paragraph 25 and are rejected in part as being unnecessary to the results reached The proposed findings of the thirteenth paragraph are addressed in paragraph 25. The proposed findings of the fourteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the fifteenth paragraph are addressed in part in paragraph 25 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the sixteenth paragraph are rejected as being contrary to the weight of the evidence and as being recitation of testimony. The proposed findings of the seventeenth paragraph are addressed in part in paragraph 21 and are rejected in part as being unnecessary to the results reached. The proposed findings of the eighteenth paragraph are rejected as being in conflict with the findings of paragraph 27. The proposed findings of the nineteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being contrary to the evidence. The proposed findings of the twentieth paragraph are addressed in paragraph 19. The proposed findings of the twenty-first paragraph are addressed in part in paragraphs 21 and 22 and are rejected in part as being unnecessary to the result reached and as being contrary to the evidence. The proposed findings of the twenty-second paragraph are rejected as being contrary to the findings of paragraphs 22 and 27. The proposed findings of the twenty-third paragraph are rejected. The monitoring reports, taken as a whole, support the recommendations of Nancy Porter. The selective comparison of statistical information is unnecessary to the conclusions reached. The proposed findings of fact, submitted on behalf of AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, are addressed as follows: 1-2. Addressed in paragraph 1. Addressed in paragraph 8. Addressed, in part, in paragraph 3 and are rejected in part as being unnecessary to the results reached. 5-8. Rejected as being unnecessary to the results reached. Rejected as being contrary to the evidence. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being argument instead of a finding of fact. Rejected as being unnecessary to the results reached and as being argument. 15-20 and are rejected as being unnecessary to the results reached and as being argument. 21-24 and are rejected as being unsupported by the evidence and as being argument. 25-26 and are rejected as being unnecessary to the results reached. 27-28 and are rejected as being unsupported by the evidence and as being argument. 29. Rejected as being contrary to the evidence and as being argument. RESPONDENT'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of the Department of Health and Rehabilitative Services are addressed as follows Addressed in paragraphs 1, 2, and 3. Addressed in paragraphs 4 and 10. Addressed in paragraph 8. Addressed in part in paragraph 8. Rejected in part as being unnecessary to the results reached. Addressed in paragraph 9. 6-7. Addressed in paragraphs 12, 13, 14, 15, and 16. Addressed in paragraph 11. Addressed in paragraph 16. Addressed in part in paragraphs 12, 13, 14, 15, and 17. Rejected in part as being subordinate to the findings made. 11-12. Rejected as being subordinate to the findings made. Addressed in part in paragraphs 18 and 19. Rejected in part as being unnecessary to the results reached. Addressed in paragraphs 21 and 22. Addressed in paragraph 27. 16-18 Rejected as being conclusions of law. COPIES FURNISHED: Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Suite 406 Fort Lauderdale, Florida 33301 John M. Camillo, Esquire VERNIS & BOWLING, P. A. 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Karen Caputo, President AAA Wheelchair Wagon Service Post Office Box 2281 5890 Rodman Street Hollywood, Florida 33023 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
