Findings Of Fact The parties have resolved the factual issues through a stipulation. A copy of the stipulation is appended to this Final Order, and constitutes findings of fact for the purposes of this proceeding. In summary, the facts are that the Respondent refers requests for formal administrative hearings that are submitted to it to the Division of Administrative Hearings. Formal hearings are conducted by the Division of Administrative Hearings, culminating in entry of recommended orders directed to the Secretary of the Department. The Department records the hearings on tape recording equipment. Tapes of the hearings are routinely made available to the parties. The Department has a policy of rejecting any exceptions to the findings of fact set out in a recommended order unless the objecting party submits a complete transcript of the hearing at that party's expense. The Respondent's practice is to allow parties to utilize tapes of the final hearing so that the party can prepare a transcript from the tapes. The Department accepts any notarized transcript prepared from the tapes as a transcript of the hearing.
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense; and, if so, whether the denial of her request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Parties Petitioner is a 49-year-old female who has requested that Respondent grant her an exemption from disqualification from employment pursuant to section 435.07, Florida Statutes, so that she can become employed as a caretaker for developmentally disabled individuals. Respondent is the state agency charged under chapter 393, Florida Statutes, with meeting the needs of children and adults having developmental disabilities. These disabilities include intellectual disabilities, autism, Down syndrome, cerebral palsy, spinal bifida, Phelan-McDermid syndrome, and Prader-Willi syndrome. Developmentally disabled persons have cognitive impairments and physical limitations that render them extremely vulnerable and highly dependent on their caregivers. Respondent fulfills its mission, in part, through direct service providers, who provide nursing, personal care assistance, transportation, companionship, in-home support, and a range of other caregiving services to persons having developmental disabilities. Because developmentally disabled individuals are extremely vulnerable, they are susceptible to potential harm or exploitation by persons providing care or other services. Therefore, such service providers are subject to level 2 employment screening pursuant to chapter 435. See § 393.0655, Fla. Stat. Petitioner's Disqualifying Offense and Other Offenses Petitioner committed her disqualifying offense on or about March 11, 2001——over 17 years ago.3/ According to the complaint/arrest affidavit that was included as part of Respondent's Exhibit 2, the file on Petitioner's request for an exemption, Petitioner assaulted and battered a 14-year-old girl during an altercation that had escalated from verbal to physical. Petitioner was charged with aggravated child abuse. According to the Finding of Guilt and Order Withholding Adjudication/Special Conditions entered by the Circuit Court for the Eleventh Circuit in and for Miami-Dade County, Florida, Petitioner was found guilty of aggravated abuse of a child, a first-degree felony. Adjudication was withheld and Petitioner was sentenced to one year of probation. As a condition of her probation, Petitioner was required to participate in an anger management program. She completed this requirement. In December 2002, Petitioner violated her probation by using marijuana. For this violation, her probation was extended another six months. On or about October 11, 2011, Petitioner was detained for retail theft and was charged with petit theft. The only official document in the record, other than Petitioner's application, is a comprehensive case information system record entry stating that the court withheld adjudication on this charge.4/ The record does not show that Petitioner pled guilty or nolo contendere to this offense. Evidence Adduced at the Final Hearing Petitioner testified regarding her disqualifying offense. According to Petitioner, she had a disagreement with her neighbor and her neighbor's daughter. A few days later, when she went to the store, her neighbor and her neighbor's daughter accosted her in the parking lot and physically attacked her, so she defended herself. She acknowledged in her testimony at the final hearing that the physical altercation had occurred and that she had been arrested and charged with aggravated child abuse. However, she claimed that her public defender had agreed to a guilty plea without her concurrence, and that adjudication had been withheld for that charge. She insisted that had she understood that "withholding adjudication" entailed entering a guilty plea, she would not have agreed to that course of action. Due to having committed the disqualifying offense, Petitioner lost her employment. She testified that she became depressed and used marijuana. She acknowledged that in doing so, she had violated her probation. She testified, credibly, that she has not used drugs since 2003. There is no evidence to the contrary in the record. Petitioner acknowledged that she was arrested for petit theft in 2011, but she testified, credibly, that she did not steal anything. She explained, persuasively, that she had gone to the store with her neighbor and that when they arrived, they went their separate ways. As they left the store together, the store's security personnel detained them and accused them of shoplifting. Petitioner's neighbor, had, in fact, shoplifted items, and ultimately was required to pay restitution; however, Petitioner was not so required. The undersigned finds Petitioner's testimony regarding the 2011 petit theft incident credible. Petitioner has completed formal training in specialized types of medical care. She is a certified phlebotomist, a certified medical assistant, and a patient care technician. She is also certified or has taken courses in Basic First Aid/CPR/AED for adults and children, recognizing and reporting elder abuse, patients' rights, medical documentation, and American Heart Association Basic Life Support. In 2015, Petitioner received an exemption from disqualification from employment from the Agency for Health Care Administration ("AHCA"), and currently is eligible to be employed as a direct or indirect service provider for programs for vulnerable persons administered by that agency. However, she is seeking an exemption in this proceeding specifically so that she can be employed in a position working with disabled individuals. Petitioner testified, credibly, that she has not had any additional encounters with the criminal justice system since receiving the exemption from AHCA, and there is no evidence to the contrary in the record. Jacqueline Snyder testified regarding Petitioner's character, compassion, and competence in caring for her (Snyder). Snyder met Petitioner when she nursed Snyder's husband. After Snyder's husband passed away, Snyder was able to procure Petitioner's services through a home health agency, and then through a private contract arrangement. In that role, Petitioner helped care for Snyder during an illness, and assisted Snyder in performing a range of daily life activities, including bathing, cleaning house, and performing other life-related activities. Snyder spoke glowingly of Petitioner's character and compassion in caring for her. On cross-examination, Snyder acknowledged that she was aware of Petitioner's disqualifying offense, but testified that she believed Petitioner's version of the event and observed that, in any case, AHCA would not have granted Petitioner an exemption if she posed a threat to vulnerable individuals. Allison Scott, Petitioner's neighbor, also testified on her behalf. Scott testified, credibly, that Petitioner is actively engaged in community and church activities, such as conducting clothing drives for children, and that she has a passion for caring for the elderly and disabled. Scott was aware of Petitioner's disqualifying offense, but believes that she deserves a second chance, particularly since that offense happened so long ago. Petitioner's neighbor, Julia Mendez, also testified on Petitioner's behalf. Mendez has been Petitioner's neighbor for over eight years. Mendez testified, credibly, that Petitioner tries to counsel, and serve as a role model for, neighborhood children. She credibly testified that she had never seen Petitioner exhibit the type of behavior with which she was charged in 2001, and that, in her view, Petitioner deserves a second chance. As part of her application for the exemption, Petitioner submitted several letters of support which supplement, explain, and support the testimony presented by Snyder, Scott, and Mendez. The letters from persons for whom Petitioner has previously cared for described her as a competent, organized, compassionate, reliable, and trustworthy caregiver. A letter from Worldwide Support Services Corporation, a Medicaid waiver provider, through whom Petitioner provided services, described Petitioner as understanding, helpful, compassionate, caring, efficient, detail-oriented, extremely competent, and an asset to the industry. Tom Rice testified on behalf of Respondent. Rice has been employed by Respondent for approximately 15 years and currently serves as a program administrator over regional supports within Respondent's Division of Operations. In this position, he oversees, among other things, the processing of background screening exemption requests. Rice explained that in reviewing an application for exemption to determine whether the applicant is rehabilitated, Respondent considers the applicant's version of events and considers whether the applicant has accepted responsibility for, and is remorseful, honest, and forthright regarding, the disqualifying offense and any subsequent offenses; and whether, since the disqualifying offense, the applicant has been a good, law-abiding citizen. Respondent also reviews the applicant's arrest reports, court records, letters of recommendation, confidential investigative summaries prepared by the Department of Children and Families investigators ("CIS reports"), and traffic records. After reviewing Petitioner's application, Respondent determined that Petitioner's request for an exemption should be denied. Rice explained that Respondent's decision was based on several factors. First, Respondent was concerned about the nature of the disqualifying offense because it entailed a crime of physical violence.5/ Rice noted that many of Respondent's clients may be prone to physically violent behavior, or may themselves be vulnerable to physically violent caretakers. Second, Rice testified that in Respondent's view, Petitioner's versions of her disqualifying offense and the 2011 petit theft offense,6/ as described in the application, were different from the descriptions in the complaint/arrest affidavits in her criminal record. Rice testified that in Respondent's view, these differences indicated that Petitioner did not take responsibility for her actions in having committed these offenses. Rice also noted the existence of "multiple" CIS reports discovered during the background screening of Petitioner, including one CIS report that showed "some indicator" of financial exploitation of vulnerable adults.7/ Rice stated that these reports caused Respondent concern that Petitioner may be physically violent toward, or exploitive of, Respondent's developmentally disabled clients. Rice noted that Petitioner's background screening also showed that Petitioner had a traffic infraction involving driving on a suspended license, which, in Respondent's view, indicated Petitioner's failure to abide by the law. Rice stated that Respondent did not give any significant weight to the letters of reference that Petitioner submitted as part of her exemption application because none of those letters was from an employer, and all of them were from friends or family members. However, on redirect examination, Rice acknowledged that the record did, in fact, contain letters of reference from persons and entities other than friends and family. He did not testify, however, that Respondent duly considered these letters of reference in evaluating Petitioner's application for an exemption. In response to a question from Respondent's counsel, Rice testified that he was concerned about Petitioner's behavior exhibited during the final hearing——specifically, that Petitioner vehemently denied having voluntarily pled guilty to the disqualifying offense, vehemently denied having engaged in any kind of abusive behavior giving rise to the CIS reports, and vehemently denied that she herself had engaged in shoplifting that led to the petit theft charge. Rice noted that dealing with developmentally disabled persons is often stressful and that he would be concerned that because of her display of emotion at the final hearing, Petitioner would not be able to exhibit a calm demeanor when dealing with developmentally disabled clients. Findings of Ultimate Fact Upon a careful and considered review of the competent substantial evidence in the record of this proceeding, the undersigned determines that Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense. The undersigned recognizes that Petitioner's disqualifying offense was a crime involving physical violence. However, as noted above, over 17 years have elapsed since Petitioner committed her disqualifying offense, and she has not been arrested for, or charged with, any crimes involving physical violence since that time. The undersigned finds that Petitioner's non-violent conduct for the past 17-plus years——which included periods during which she cared for elderly persons who were limited in their life activities——constitutes strong evidence that she can be trusted to deal with vulnerable persons in a non-violent manner. The undersigned does not find Petitioner's version of the disqualifying offense presented at the final hearing inconsistent with the applicable complaint/arrest affidavit in the exemption application file. To the contrary, Petitioner acknowledged that she had engaged in a physical altercation with her neighbor's daughter and expressed regret at having done so. However, as she was entitled to do, she also sought to explain the circumstances surrounding her disqualifying offense and to further explain that she did not intend to plead guilty and would not have done so had she understood that such plea was being entered by her attorney. Additionally, as noted above, the undersigned finds credible Petitioner's version of the circumstances surrounding her arrest in 2011 for petit theft. The undersigned does not agree that Petitioner's attempt to explain the circumstances surrounding this arrest as failing to take responsibility for her actions. To this point, as discussed above, the "police report" to which Rice referred in his testimony was not part of Petitioner's application file. Rather, the document to which Rice referred concerned an arrest that occurred on July 28, 1989.8/ That document does not support the position that Petitioner failed to take responsibility for her 2011 offense. The undersigned finds Petitioner's explanation of her 2011 offense credible, and finds Rice's testimony unpersuasive because it is not supported by other evidence in the record. Additionally, the CIS reports in Respondent's Exhibit 2 do not constitute competent substantial evidence of Petitioner's lack of rehabilitation in this proceeding. Those reports are hearsay that does not fall within any exception to the hearsay rule, so they cannot be used as the sole basis for finding that any of the events specifically addressed in the reports happened or that any of the statements contained in those reports is true.9/ § 120.57(1)(c), Fla. Stat. Because Respondent did not present any other evidence independently establishing the occurrence or truth of any of the matters addressed in the CIS reports included in Respondent's Exhibit 2, neither they nor Rice's testimony about them are afforded any weight in this proceeding. It is further noted that in 2015, Petitioner received an exemption from AHCA, which also conducts level 2 background screening to determine whether an applicant would constitute a danger to children and vulnerable adults. AHCA's determination that Petitioner would not pose a danger to such vulnerable persons, while not determinative in this case, is probative and is persuasive evidence that Petitioner is rehabilitated from her disqualifying offense. Finally, it is noted that at the final hearing, Petitioner vehemently denied that she had engaged in any conduct addressed in the CIS reports, and she displayed strong emotion while explaining the circumstances surrounding her disqualifying offense and the 2011 petit theft arrest. The undersigned does not find Petitioner's conduct at the final hearing indicates that she would engage in physically or emotionally violent conduct while working with Respondent's clients. Rather, the undersigned finds Petitioner's non-violent conduct over the past 17-plus years to be far more indicative of her future behavior than her emotional responses to cross-examination10/ during the final hearing. In sum, the competent, substantial, and persuasive evidence in the record of this proceeding establishes that Petitioner is rehabilitated from her disqualifying offense, and that she will not present a danger to developmentally disabled individuals if her request for an exemption from disqualification from employment is granted. Because the evidence establishes that Petitioner is rehabilitated from her disqualifying offense, the undersigned determines that denial of her request for an exemption would constitute an abuse of Respondent's discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 30th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 30th day of May, 2018.
The Issue Whether Petitioner was retaliated against due to testifying by deposition in another employee’s employment discrimination lawsuit.
Findings Of Fact Amie Remington, Esquire, an attorney in private practice, was hired as a contract attorney by the State of Florida to represent the Department in an employment discrimination lawsuit brought by Linwood Scott involving computer security violations and lax enforcement of the Department’s computer security policy that resulted in loss of State funds due to employee fraud. As part of the discovery in the Scott case, Ms. Remington deposed Petitioner on January 11, 2005. Prior to the deposition, Ms. Remington spoke with Katie George, Chief Legal Counsel for the Department, and obtained information as to all proposed witnesses, including Petitioner. At this time, Ms. Remington received information that Petitioner was identified for layoff. Mamum Rashied, the Department’s former District Operations Administrator, who retired on February 2, 2006, managed the Department’s operations for the four counties in District One; Escambia, Santa Rosa, Okaloosa, and Walton. As District Operations Administrator, Mr. Rashied was the second person in charge of the district with purview over the Economic Self Sufficiency (ESS) Program. The ESS program was the program in which Petitioner was employed at a salary of $1215.00 bi- weekly. During calendar year 2005, the ESS program underwent a statewide reorganization resulting in the elimination of approximately 42 percent to 43 percent of ESS positions through layoffs in District One. Petitioner, then an Economic Self-Sufficiency Specialist II (ESSSII), was on the list for layoff. Placement on the layoff list was made based on a top-to-bottom ranking of employees. Each employee was to be rated by the unit supervisors and placed on the list in terms of their retainability. The rating list was forwarded to the Operations Manager for the Service Center. Each Service Center compiled a ratings list which was then forwarded to the District Program Office to be combined into one district list. Mr. Rashied received a copy of the district list which contained the Petitioner’s name sometime in December 2004. The layoff listing process took approximately two months and was in existence prior to the Petitioner giving her deposition in the Linwood Scott case on January 11, 2005. Prior to the layoffs, Department personnel conducted general sessions at the Service Center for all interested employees to gain information as to the potential layoff situation. However, Petitioner was unaware of these meetings and apparently did not participate in them. During her deposition in the Scott case, Petitioner testified that she had logged into her computer using her password and P number and then allowed another employee to use her computer to help her with a problem case. Petitioner had permitted the use of her computer in an effort to help the employee process the information her center was required to handle. Such aid and supervision was part of her duties as an ESSSII. Petitioner did not believe that her actions violated the security policy of the Department. However, such action was a violation of the Department’s computer security policy. Petitioner’s testimony related to the fact that such activity occurred often in her Department. After her testimony, Petitioner was terminated on January 27, 2005, effective February 7, 2005, prior to her being laid off. The termination was the result of the Petitioner’s violation of the Department’s computer security policy. Petitioner was subsequently reinstated on April 5, 2005, following a ruling by the Public Employee Relations Commission (PERC) in favor of Petitioner, including payment of back pay and benefits. The ruling did not find that Petitioner had been retaliated against. Immediately following reinstatement, Petitioner was laid off effective April 5, 2005, pursuant to the prior layoff list which was still on-going. Importantly, if Petitioner had not been terminated she would have been laid off. Petitioner was subsequently rehired by the Department as an Economic Self-Sufficiency Specialist I (ESS-I) on September 2, 2005. The Petitioner’s personnel file indicated that she had been laid off and was subject to rehire. Based on a position opening and Petitioner’s qualifications, Petitioner was rehired and continues in the ESS-I position to date. Petitioner testified in her own behalf at the hearing. She asserted that she thought she was retaliated against because of her testimony in the Linwood Scott case. However, she offered no other evidence to show such retaliation and such supposition is insufficient to support a claim of retaliation. Likewise, Petitioner did not offer any evidence that Petitioner’s reasons for her initial termination and later layoff were pretexts to cover unlawful retaliation. Since there was insufficient evidence to support Petitioner’s claim of retaliation, her Petition for Relief should be dismissed.
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 Petition for Relief. DONE AND ENTERED this 16th day of May, 2006, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brittie Powers 106 Lakewood Road Pensacola, Florida 32507 Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734
Recommendation By reasons of the foregoing Facts and Conclusions of Law, I recommend that the Respondent's license be revoked. DONE and ORDERED this 4th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issues in this proceeding are whether DOAH has jurisdiction over the subject matter of this proceeding and whether Petitioner has standing under Chapter 120.
Findings Of Fact Respondent, Office of Financial Regulation (OFR), which has been through several name changes, is the agency responsible for enforcement of Chapter 494, Florida Statutes, governing the regulation and licensure of mortgage brokers and mortgage lenders. In order to perform its regulatory and licensure duties OFR collects, processes and maintains information related to mortgage brokers and mortgage lenders seeking licensure in Florida and/or complying with Florida law. Much of the information regarding a particular broker or lender is maintained by OFR in its licensure files. At least some, if not all, of the information forming OFR's licensure files are kept in electronic form in OFR's computerized licensure database. The record is not clear, if such information is also maintained in paper form. OFR's database is maintained on computers controlled and managed by Intervenor, Office of Financial Services (OFS). OFS supplies administrative and information systems support services, including computer security, to maintain OFR's licensure database, as well as other information maintained on OFS's computer systems. Petitioner, Dave Taylor, is president of Petitioner, Florida Compliance Specialists, Inc. Both are residents of Leon County. Petitioners' business consists of providing regulatory compliance and licensing services to in-state and out-of-state mortgage brokers or mortgage lending companies doing business or seeking to do business in Florida. Petitioners' licensure service includes, in part, aiding their clients in obtaining licensure with OFR. As part of their service, Petitioners' monitor the status of OFR's licensure files regarding a client's application for licensure, as well as gathering information related to their clients on other licensure, deficiency or compliance matters. At least some of the information contained in these files is kept in electronic form, and is accessible online through a wide-area network connection to OFR's licensure database. Since 1999 and with the help of OFR's predecessor agency, Petitioners had computer online access, as well as non-online access, to certain of OFR’s licensure databases. The online access was provided by OFR through a networking services provider. Agency personnel provided Petitioners with a user identification and password for read-only access to OFR's licensure database. Read-only access permits a user to look at and print information contained in a database or document, but does not permit a user to change or add data to a database or document. The networking services provider also supplied Petitioners with a separate user identification and password so that Petitioners could access the networking services provider's computer system. In order to access the networking services provider's computer system Petitioners had to enter into a written limited user agreement with the networking services provider. Petitioners paid a fee based on that agreement to the networking services provider. There was no evidence that any part of the fee paid to the networking services provider for its service was paid to OFR or any of its predecessor agencies for access to its database. There was no access fee paid directly to OFR. At some point prior to this action, OFR discontinued Petitioners' online access to its licensure database. Petitioner used and continues to desire online access to OFR's database in order to provide faster service to its clients which in-turn might speculatively allow Petitioners to take on more clients. Lack of online access does not prevent Petitioners from obtaining any information they utilize in their business. Such information remains available through traditional, non-online access methods such as written or telephonic requests, resulting in oral responses or paper copies of the information requested. Such traditional requests for information from OFR may be less speedy and more costly to obtain. However, Petitioners offered no evidence to support their claim of additional costs created by non-online access vis on-line access. More importantly, irrespective of speed or costs, online access to OFR's database or computer system is neither a legal right nor a substantial interest cognizable in an administrative hearing for purposes of Petitioners standing in this case. Additionally, Petitioners have alleged a contract with OFR for continued online access. Other than stating there is a contract, the pleadings afford no factual basis for concluding such a contract exists. There is no contract attached to the pleadings and Petitioners have no idea of the terms or conditions of such a contract. Petitioners do not know whether the contract is written or oral or who the parties are to the contract. Clearly these allegations are purely speculative. As such, the pleadings do not form the bases for facts sufficient to demonstrate Petitioners' standing in this action.
The Issue At issue is whether the respondent violated section 493.6118(1)(n), Florida Statutes, as alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: During the period of time specified in the Administrative Complaint, May 19, 1994, through October 10, 1994, 24-Hour Security held a Class "B" Security Agency License, number B91-00117. From May 19, 1994, through October 10, 1994, Richard R. Cullen was president of 24-Hour Security and held, among other licenses, a Class "M" Manager License, number M86-00152. 24-Hour Security, whose only office is located at 1515 South Federal Highway, Boca Raton, Florida, is in the business of providing security guards to businesses and condominiums. It employs licensed security guards and trains and supervises them to ensure that they adequately perform their duties and carry out the instructions of 24-Hour Security's clients. From May 19, 1994, through October 10, 1994, Michelle T. Reilly was employed by 24-Hour Security and worked as assistant to Mr. Cullen. She began working for 24-Hour Security in September 1992 and has always been highly regarded as an employee by Mr. Cullen. He has trained her in all aspects of the private security service business in order for her to get the experience necessary to qualify for a chapter 493 manager's license. Prior to February 16, 1995, she had never held any type of license authorized by chapter 493 of the Florida Statutes. Mr. Cullen was aware that she was not licensed. Since the agency's inception, Mr. Cullen has designated himself manager of 24-Hour Security and has considered himself ultimately responsible for the operation of the agency. During the period of time at issue in this proceeding, Ms. Reilly's business cards identified her as "Branch Manager," and she was identified as such by licensed employees of 24-Hour Security. On one occasion during the Department's investigation, Ms. Reilly expressly identified herself to an investigator of the Department as manager of 24-Hour Security. During the period of time at issue in this proceeding, in addition to performing secretarial and bookkeeping duties, Ms. Reilly assisted Mr. Cullen in (1) hiring and training licensed security guards; (2) preparing daily work schedules for the guards; (3) preparing post orders outlining the duties a guard is to carry out at a particular post, including the client's special instructions or requirements; (4) supervising the operation of the agency's dispatch center; (5) addressing clients' problems; (6) consulting with clients regarding proper security precautions; (7) conducting post inspections to ensure that the guards are at their posts, properly uniformed and carrying out their responsibilities; and (8) writing security proposals for clients and in developing new accounts. In assisting Mr. Cullen with these duties, Ms. Reilly at times was allowed by Mr. Cullen to direct and control the activities of licensed security officers and to operate the agency. When Mr. Cullen was advised by the Department that Ms. Reilly could not function as or be designated as "manager" of 24-Hour Security, he immediately removed her business cards from the office. Ms. Reilly applied for a Class "MB" manager's license on November 9, 1994. Her application was denied by the Department by letter dated January 17, 1995, because she had "not demonstrated the lawfully gained experience or appropriate training" required for licensure. Ms. Reilly was issued a Class "D" Security Officer license on February 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a Final Order finding 24-Hour Security, Incorporated, and Richard R. Cullen guilty of the violation alleged in the Administrative Complaint and imposing a fine of $500 for this violation. DONE AND ENTERED this 25th day of April 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April 1995. APPENDIX The following are my specific rulings on petitioner_s Proposed Findings of Fact. Paragraphs 1 through 9: Adopted in substance in Findings of Fact numbered 1 through 8. The following are my specific rulings on respondent_s Proposed Findings of Fact. Paragraph 1: Adopted in substance in Findings of Fact numbered 2 and 5. Paragraph 2: The proposed finding of fact in the first portion of the first sentence is rejected as not supported by the evidence. The proposed findings of fact set out in the second portion of the first sentence and in the second, third, fourth, and fifth sentences are rejected as merely summaries of testimony. The proposed finding of fact in the final sentence is rejected as not supported by the evidence. Paragraph 3: The proposed finding of fact in the first sentence was adopted in substance in Finding of Fact numbered 6. The remaining proposed findings of fact are rejected as argument. Paragraph 4: The proposed finding of fact in the first portion of the sentence is rejected as merely a summary of testimony; the proposed finding of fact in the second portion of the sentence is rejected as argument. Paragraph 5: Rejected as unnecessary. Paragraph 6: Rejected as unnecessary. Paragraph 7: The proposed finding of fact in the first portion of the sentence is rejected as unnecessary; the proposed finding of fact in the second portion of the sentence is rejected as not supported by the evidence. Paragraph 8: The proposed findings of fact in the first two sentences are rejected as legal argument. The proposed finding of fact in the last sentence is adopted in substance in Finding of Fact numbered 5. Paragraph 9: The proposed finding of fact in the first two sentences are rejected as unnecessary. The proposed findings of fact in the last two sentences are rejected as argument. Paragraph 10: Rejected as argument. Paragraph 11: Rejected as argument. Paragraph 12: Rejected as argument. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Richard R. Cullen, President 24-Hour Security, Incorporated 1515 South Federal Highway Suite 109 Boca Raton, Florida 33432 Don Bell General Counsel Department of State The Capitol Tallahassee, Florida 32300-0250 The Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Section 760.11(7), Florida Statutes (2003).
Findings Of Fact Petitioner filed a Charge of Discrimination with FCHR on June 30, 2003. Petitioner alleged that Respondent discriminated against her based on her sex and retaliated against her when she complained that her supervisor was sexually harassing her. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on March 24, 2004. That same day, FCHR issued a Notice of Determination: No Cause, advising Petitioner that she had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes, if she failed to request a hearing in a timely manner. The 35th day was April 28, 2004. Petitioner sent her Petition for Relief to FCHR by facsimile transmission on April 28, 2004, at 4:26 p.m. C.S.T. FCHR received the Petition on April 28, 2004, at 5:35 p.m. E.S.T. or 35 minutes after FCHR's normal business hours. Therefore, the Petition was not filed until April 29, 2004, one day after expiration of the 35-day period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Simpson, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Debra Dawn Cooper, Esquire 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented is whether Petitioner is entitled to attorney?s fees pursuant to section 57.105, Florida Statutes (2011), and if so, what constitutes a reasonable fee?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of veterinarians in the State of Florida pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. At all times material to these proceedings, Petitioner has been a licensed veterinarian in Florida, having been issued license number VM 5290. Petitioner was the treating veterinarian for a dog named, Awesomer, owned by Sheri Lawhun. On April 28, 2009, Ms. Lawhun brought Awesomer to Petitioner for examination and treatment. Details of the treatment provided to Awesomer are related in the Findings of Fact in the Merits Case. For the purposes of this Final Order, it is sufficient to state that Respondent treated Awesomer from April 28-30, 2009, and that on April 30, Awesomer died. Ms. Lawhun filed a complaint with the Department of Business and Professional Regulation regarding the care and treatment Respondent provided to Awesomer. Just prior to his provision of care for Awesomer, Dr. Langford?s office switched to a “paperless” system, which involved switching to electronic medical records, bookkeeping, etc. Petitioner testified in the Merits Case that the medical record itself is stored on the computer software and that there are a wide variety of “print screen” options available. Dr. Langford demonstrated the complicated nature of the software and the ability to “hide” different parts of the medical records from the print screen, as well as to copy and paste entries to the “top” or most recent page, of the medical record. The software does not allow the user to delete record entries, but does allow a user to hide them, change the dates for them, or make them unavailable to print. There are also entries on screens called “snatch screens” that do not print. As a result, there are three different sets of medical records for the same period of time for Awesomer that were admitted into evidence in the underlying case: 1) Petitioner?s Exhibit A, which was printed on May 16, 2009, at the request of Ms. Lawhun; 2) Petitioner?s Exhibit B, which is the copy of the records printed on July 15, 2009, in response to the complaint filed with the Department; and 3) Petitioner?s Exhibit C, which was printed August 2, 2011, and provided to Petitioner?s counsel during the litigation of this case. The three sets of medical records are not identical. Dr. Langford attributed these differences to entries that he ordered “declined” or hidden, so that the client did not see them, or because information was on the “snatch screen” in the program, which does not print. For example, the information related to Awesomer?s final visit to the clinic, according to Dr. Langford, was moved to the top of the record on May 16, 2009, so that Ms. Lawhun could see what happened on the day the dog died. He claimed that the entry was originally recorded soon after the dog?s death, but that it was moved when providing the records to Ms. Lawhun. Similarly, the date of the dog?s death is recorded in Petitioner?s Exhibits A and B as May 1, 2009, the first business day following the dog?s after-hours? visit. It is changed to April 30, 2009, in Petitioner?s Exhibit C. After the initial investigation of this case, counsel for the Department prepared a draft closing order and presented it to the probable cause panel for the Board of Veterinary Medicine at its meeting April 21, 2010. However, after some concerns expressed by the panel members, the Department?s recommendation was changed from closing the case to obtaining an expert review of the file. The Department had the file reviewed by two veterinary experts, Dr. Jerry Green and Dr. Melanie Donofro. Dr. Donofro is a former member of the Board of Veterinary Medicine. Both experts opined that there were problems with the care and treatment of Awesomer, as well as problems with the medical records for Awesomer. As a result of the expert witness reviews, a four-count Administrative Complaint was drafted and filed, charging Respondent with violating subsections 474.213(1)(r)(violation of the relevant standard of care); 474.213(1)(ee)(failure to keep contemporaneously written medical records as required by rule of the board); 474.214(1)(w) (practicing at a location without a valid premises permit); and 474.214(1)(m)(failure to notify Board of a change of address). The case was not taken back to probable cause prior to the drafting of the Administrative Complaint because of a computer data entry error that resulted in a computer record indicating probable cause had already been found. As is recounted below, the case eventually was presented to the probable cause panel a second time on the issue of medical records. Because the Fees Motion is directed to the medical records count, the failure to take the case back to the probable cause panel before the filing of the original Administrative Complaint has no real significance at this point. Petitioner?s assertion that counsel for the Department had a personal vendetta against him and had to remember that probable cause was not found at the April 2010, meeting is specifically rejected. As stated by Ms. Henderson at hearing, Dr. Langford?s case was one of many presented for consideration. While it is unfortunate that an error occurred, it is not indicative of any “personal” interest in prosecuting Petitioner. The Department and Dr. Langford agreed to a settlement that would have dismissed three of the four counts in the Administrative Complaint, and imposed a minimal penalty for Count III. However, when the stipulation was presented to the Board for approval, it was rejected. Board members voiced serious concerns regarding both the standard of care given to Awesomer and the adequacy of the medical records. The prosecutor told the Board that the Department entered into the settlement stipulation “in the interest of getting the case wrapped up,” and that the Department believed that the case would be a “battle of the experts” with respect to the standard of care issue. Ultimately, the Board voted to reject the stipulation offered and offered a counter proposal that would have resulted in dismissal of all of the charges except the medical records count, with a penalty consisting of a $1,500 fine, 30 days probation, and costs. Dr. Langford rejected the counter- proposal. An Amended Administrative Complaint was prepared and, along with the expert reports received, was submitted to the probable cause panel for review and approval. Also included in the materials was Dr. Langford?s response to the Amended Administrative Complaint. While counsel for Dr. Langford offered to “walk them through” his response to the allegations contained in the Amended Administrative Complaint, counsel acknowledged that she did not have anything to add that was not in his written response. The probable cause panel voted to approve amendment of the Administrative Complaint to a single charge of violating section 474.213(1)(ee). The panel also directed counsel for the Department to consult one of its experts, Dr. Green, to make sure the allegations in the Amended Administrative Complaint were consistent with his opinion. She did so. Contrary to Petitioner?s assertions, the panel did not simply “rubber stamp” the actions of the Department. Dr. Jones indicated her agreement with Dr. Green?s expert opinion, and there is lengthy discussion of the case. See Petitioner?s Exhibit P, pages 13-21, and 23-26. Respondent disputed the allegations in the Amended Administrative Complaint and on June 24, 2011, the case was forwarded to the Division of Administrative Hearings to conduct a section 120.57(1) hearing. Discovery and motion practice was active and, at times, acrimonious.1/ See, for example, the Order on Pending Motions, dated August 24, 2012. On August 29, 2012, Respondent filed the Fees Motion giving rise to this proceeding. The Fees Motion contains a certification that it was served on Petitioner on August 4, 2012. Ironically, much of the Fees Motion has nothing to do with the allegations contained in the Amended Administrative Complaint. The first four pages of the Fees Motion present Dr. Langford?s version of what happened in the final days of Awesomer?s life, and include facts not found anywhere in the pleadings. The next sections deal with accusations of the dog owner involving a psychic, and “public untrue statements about Respondent,” by Ms. Lawhun, which are also accusations not finding their way into the Department?s charging document. It is not until page 16 of the Fees Motion that the actual allegations that would give rise to the motion are identified and discussed. Ultimately, a Recommended Order was submitted that recommended dismissal of the Second Amended Administrative Complaint. The Recommended Order was issued after a section 120.57(1) hearing, and after consideration of all of the evidence presented at that hearing. The Board of Veterinary Medicine issued a Final Order on June 25, 2012, adopting the Findings of Fact and Conclusions of Law contained in the Recommended Order. At the time Petitioner filed the Fees Motion, the case was proceeding on the Amended Administrative Complaint. There was pending at that time a Motion to Amend the Amended Administrative Complaint, which was granted, and the case went to hearing on the Second Amended Administrative Complaint. At pages 16-17 of the Fees Motion,2/ Petitioner asserts that the Department alleges that he failed to properly document the dog?s heart rate and did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of the heart rate.3/ The basis for Petitioner?s challenge is an attack on the sources used by and the opinion of Dr. Donofro, one of the Department?s experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding Awesomer?s heart rate. The Department had a reasonable basis upon which to file the allegations in the Second Amended Administrative Complaint, and to proceed with those allegations. Petitioner cites to the Department?s allegations regarding his failure to record a fecal test. It was found in the Recommended Order that Respondent did not perform a fecal test (hence no record for one). While the Recommended Order concluded that the Department did not prove a medical records violation on this ground by clear and convincing evidence, the medical records indicate that the pet owner had reported that Awesomer had suffered from diarrhea the night before, and noted that his stool was “near normal” at the clinic. A notation of “near normal” stool could be interpreted, as it was in light of testimony presented at hearing, that no fecal test was performed and that the notation was based upon observation alone, or that fecal tests resulted in findings that were close to normal but that were not expressly recorded. Petitioner?s record is ambiguous enough to support either interpretation, and the Department relied on the interpretation of its experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the tests, or lack thereof, of Awesomer?s stool, and the Department had a reasonable basis to include the allegation in the Second Amended Administrative Complaint and to proceed with prosecution. Respondent takes issue with the allegations regarding low-urine gravity and other serum values. The specific allegations, found at paragraphs 12-13 of the Second Amended Administrative Complaint, state: Respondent performed a urinalysis for Awesomer. Respondent recorded in the medical records that he found a “low urine gravity,” but failed to address the elevated serum creatinine, serum albumin, serum sodium, and urine pH in Awesomer?s medical records. Dr. Donofro found the failure to address these values to be a problem. Ultimately, Dr. Langford?s testimony that he documented the values in the record but did not record any follow-up based on his belief that the identified values were not abnormal was credited at hearing. However, the fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the evaluation of serum creatinine, serum albumin, serum sodium, and urine pH. The Department had a reasonable basis on which to include the allegations in the Second Amended Administrative Complaint and to proceed with the prosecution of these allegations. At page 16 of the Fees Motion, Petitioner takes issue with paragraphs 14-15 of the Second Amended Administrative Complaint, which allege that Respondent failed to record any indication that Awesomer drank excessively, beyond the tentative diagnosis of polydipsia. Dr. Donofro?s report specifically addresses the failure to indicate excessive fluid consumption in that one would expect to see a notation regarding the level of consumption, in light of Respondent?s tentative diagnosis for Awesomer. Once again, however, the inclusion of this item in the Second Amended Administrative Complaint was based upon expert reports received by the Department prior to filing the Amended Administrative Complaint and the Department had a reasonable basis for including it and for prosecuting it. At page 19 of the Fees Motion, Petitioner takes issue with the allegation that he failed to include anything in the medical records for April 28, 2009, to support the administration of Phenylpropanolamine. This allegation is discussed by Dr. Donofro in her report, upon which the Department relied. At hearing, the issue was decided in Dr. Langford?s favor based upon his testimony and that of his expert witness, Dr. Vega (who is also a former member of the Board of Veterinary Medicine). However, the Department had a reasonable basis for including this factual allegation in the Second Amended Administrative Complaint and for prosecuting it. At pages 19-20 of the Fees Motion, Petitioner takes issue with the inclusion of allegations related to the documentation of a modified water-deprivation test. He is especially critical because he testified that he performed a modified water-deprivation test as opposed to a water- deprivation test, and states that the medical records clearly delineate that a modified water-deprivation test was performed. While the April 28, 2009, entry indicates that a modified water- deprivation test will be performed, there are other entries in the records for Awesomer that refer to scheduling and conducting a water-deprivation test. Based on the records, Dr. Donofro addressed this issue in her report.4/ While Petitioner ultimately prevailed on this issue, there was a legitimate basis for the Department to include the allegations in the Second Amended Administrative Complaint and to proceed with these allegations. On page 21 of the Fees Motion, Petitioner alleges that “Amended administrative complaint lines 25-26 allege Respondent failed to record in Awesomer?s medical record for April 29, 2009, anything regarding this visit, including the lactated- ringers solution administration. It is there in the record for that date, clear as day, that it was administered, as it was, on April 30, 2009, not on April 29, 2009.” Petitioner?s allegation is not consistent with the actual allegations in the Second Amended Administrative Complaint. That document states: Respondent?s written response from July 7, 2009, states that he examined Awesomer after 9:30 PM on April 29, 2009 and “found nothing abnormal in the examination of the dog, but considered the possibility of the lingering effects from the water deprivation study.” Respondent failed to record in Awesomer?s medical records for April 29, 2009, anything regarding this visit or examination. Respondent?s written response from July 7, 2009, also states that he examined Awesomer after 9:30 PM on April 29, 2009, and “placed a catheter in [Awesomer?s] arm, and administered 1000 cc of [Lactated Ringers Solution].” Respondent failed to record in Awesomer?s medical records for April 29, 2009, that he placed a catheter or administered the Lactated Ringers Solution (LRS). The Fees Motion does not mention the July 7, 2009, response by Dr. Langford. It was not admitted into evidence in this proceeding or in the disciplinary proceeding. It is, however, mentioned in Dr. Donofro?s report, and she comments on the discrepancy between Dr. Langford?s account of the events and Ms. Lawhun?s. Dr. Donofro also discusses at length what she viewed as some ambiguities in the recording of the amount of LRS, and opined that the amount provided under either interpretation she could reach was inappropriate. There was a basis upon which the Department could rely for including these allegations in the Second Amended Administrative Complaint and proceeding with those allegations. At page 21 of the Fees Motion, Petitioner claims that the Department alleges “in administrative complaint line 35 that Respondent should have included a „discussion? of electrolytes and white blood count,” and claims that there are no facts to support a records violation for line 35. Paragraph 35 of the Second Amended Administrative Complaint simply states that “the CBC results indicated that Awesomer?s white blood count was elevated.” A review of both the original and the Amended Administrative Complaint confirm that neither of those documents have the allegation of which Petitioner complains, at paragraph 35. Paragraph 36 of the Second Amended Administrative Complaint alleges that “Respondent failed to record any explanation or discussion of the results of the CBC or General Health Profile with Electrolytes in the April 30, 2009, medical records for Awesomer.” Dr. Langford?s criticism that “this is a medical record, not a dissertation,” is flippant at best, and ignores the requirement in Florida Administrative Code Rule 61G18-18.002(1) that the records “contain sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered.” Concerns about issues revealed in the CBC were discussed in Dr. Donofro?s report, and the lack of follow-up or discussion led her to believe that certain possibilities in treatment were overlooked. The Department?s belief, that some reference other than the test result itself was necessary, was reasonable given the need for records to justify a diagnosis, and the Department had a basis to proceed with this allegation. Finally, at page 22 of the Fees Motion, Dr. Langford takes issue with the Department?s allegations that medical records were not contemporaneously recorded for events taking place April 30, 2009. Yet, there is no dispute that there are three separate versions of the medical records in this case, and one of the issues presented was the discrepancy in dates for certain services. The Department had a reasonable basis to proceed with the allegations with respect to the May 16, 2009, entries.
