The Issue Whether or not Respondent employer has committed an unlawful employment practice in violation of the Human Rights Act of 1977, as amended, by termination of Petitioner's employment on the basis of her sex (female) or by retaliatory discharge for Petitioner's participation in another female employee's Equal Employment Opportunity Claim.
Findings Of Fact Respondent Florida Power Corporation (FPC) is an electrical utility engaged in the generation, transmission, and distribution of electricity. At all times material, it qualified as an "employer" under the relevant statutes. Petitioner Karen Austin, a white female, was initially employed by FPC in May 1985 at its Crystal River, Florida, production site. The Crystal River production site consists of five generating units-- one nuclear unit and four coal-fired units. The coal-fired units are Units 1 and 2 located on the south side and Units 4 and 5 located on the north side. FPC maintains a five-shift rotation in coal handling with a shift supervisor responsible for each shift of employees. The five shift supervisors report directly to John Price, Site Operations Superintendent, who is responsible for all coal handling operations at the Crystal River site. Mr. Price reports to Ed Carnahan, Crystal River Coal Plant Site Support Manager, and Mr. Carnahan reports to R.C. Bonner, Site Director, Fossil Operations. Danny Douglas, Assistant Site Support Manager, is also a supervisor of Mr. Price. From June 1987 until her termination from employment on October 13, 1988, Petitioner worked as an assistant fuel handler, which is the entry level position in the coal handling department. She was the only female in this job description on her shift. Lynn Graves-Donaldson testified to overhearing some generalized adverse comments from unidentified male shift supervisors and coworkers about not wanting to train or work with a female when Petitioner was promoted in 1987 to assistant fuel handler. While employed as an assistant fuel handler, Petitioner reported directly to J. D. Stephens, who reported directly to John Price. Petitioner's employment relationship with FPC was regulated by the collective bargaining agreement between FPC and the International Brotherhood of Electrical Workers (IBEW). In January 1988, John Price and other management personnel began receiving telephone calls from local businesses complaining that Petitioner had written and given them bad checks. Writing bad checks is a violation of FPC policy. Section 7.3 of FPC's Human Resources Manual states, "Employees who do not handle their personal or financial affairs without reflecting discredit upon themselves and the company are not desirable employees, and are, therefore, subject to discharge." The codified policy does not facially discriminate, by sex or otherwise, against any employee or class of employee. As one of the largest employers in Crystal River, a small community, FPC attempts to maintain good community relations with its "clients." Due to its self-cast good neighbor/good utility role, FPC pays greater attention to the private, off-job site activities of its employees than many other employers would. In so doing, its management personnel regularly rely on hearsay in the nature of complaints, gossip, and newspaper articles in the administration of its policy codified in the FPC Human Resources Manual. FPC tries to follow a progressive discipline procedure, depending on the severity of the offense against its codified policy. With employee problems such as writing bad checks, the steps generally consist of an informal talk by the employee's immediate supervisor; a counselling session; an oral reprimand; a written reprimand; and suspension without pay and/or termination. On one occasion, John Price counselled a male employee (race not in evidence) concerning bad checks, and that employee paid up with no further disciplinary action. FPC has also discharged male employees for violations of its policy. Richard Brown (Black male) and Richard Frankie (white male) were discharged by FPC on February 6, 1985 and May 5, 1986, respectively, for failing to handle their financial affairs without reflecting discredit upon themselves and the company. The precise job status of these male employees is not in evidence, but all employees, regardless of job description, are subject to the rules and policy contained in the FPC Human Resources Manual, and so these employees may be considered employees who are "substantially similar" to the Petitioner for purposes of this proceeding. After receiving the initial complaints about Petitioner's financial affairs, John Price asked J. D. Stephens, Petitioner's immediate supervisor, to discuss the problem with Petitioner. Mr. Stephens subsequently reported back to Mr. Price that he had talked with Petitioner on February 23, 1988 and she agreed to take care of the debts occasioned by her bad checks. However, weighing the credible evidence as a whole, it is found unlikely that such a conversation ever occurred between Mr. Stephens and Petitioner or at least that it occurred on that date. In the course of his testimony, Mr. Stephens' candor and demeanor on this subject did not comport with that of a truthful person. Moreover, in the course of hearing, it became clear that Mr. Stephens had made false reports or had failed to transmit relevant employee information to Mr. Price on other occasions. Also, Petitioner was not regularly on the plant premises during this period of time due to her recuperation from a work-related hiatal hernia. Nonetheless, Mr. Price believed Mr. Stephens' representation at the time it was made in February or March of 1988. In February 1988, FPC had received a complaint from The Jeanery that Petitioner had written that business a check on a closed account. The Jeanery made a second complaint to FPC by letter dated March 3, 1988, and since Petitioner had failed to correct the problem, Mr. Price personally conducted a counseling session with Petitioner on March 31, 1988 to discuss the complaint from The Jeanery and the other complaints that FPC had received from local businesses. At their March 31, 1988 meeting, Mr. Price showed Petitioner Section 7.3 of FPC's Human Resources Manual which states that employees who fail to handle their financial affairs without reflecting discredit upon themselves and the company will be subject to discharge. Petitioner acknowledged to Mr. Price that she understood FPC's policy and would take care of the debt to The Jeanery. Following their March 31 meeting, Mr. Price received additional complaints from local businesses that Petitioner was continuing to write bad checks. On May 31, 1988, Mr. Price received a complaint from Jan's Uniforms that Petitioner had written that business a bad check. Mr. Price also received similar complaints from the Denim Patch, Cindy's Beauty Salon, Chest and Drawers, and Publix Supermarket. On July 6, 1988, FPC received a complaint from Joan's Consignment Boutique that Petitioner had written that business a check on an FPC credit union account which had previously been closed. Two days later, on July 8, 1988, Mr. Price received a bad check complaint from One Hour Photo. After receiving the call from One Hour Photo, Mr. Price called Petitioner, informed her of the complaint, and told her to go pay the debt. On July 9, 1988, Mr. Price received a complaint from Meineke Muffler that Petitioner had written that business a check on a closed account. Due to the number of bad check complaints since the March 31 meeting, Mr. Price determined that further disciplinary action against Petitioner was warranted. He scheduled a meeting with Petitioner, J. D. Stephens, and Sid Miller, Petitioner's union representative, on July 11, 1988 at 10:45 a.m. During this meeting, Mr. Price explained to Petitioner that FPC had received numerous complaints since their March 31 meeting, and he provided her copies of some of his notes detailing the complaints. Petitioner established that Mr. Price did not give Petitioner all of his notes, but that fact is not dispositive in this proceeding since it does not substantially affect the situation for which he ultimately held Petitioner responsible. (See, Findings of Fact 37-41, infra.) Mr. Price also issued Petitioner an oral reprimand and told her that her job was in jeopardy if she did not straighten out her bad check problem. Petitioner told Mr. Price during their July 11 meeting that she was not writing the bad checks and that the checks were being written by her husband or his girlfriend. Although Mr. Price told Petitioner that the checks were in her name and it was her responsibility to correct the problem, Mr. Price later the same day telephoned Claudia Keiser with One Hour Photo to verify whether Petitioner had written the bad check. Ms. Keiser described the Petitioner as the person who had written the check and also gave Mr. Price the driver's license number that had been given to her by the party who had written the check. Mr. Price confirmed to his satisfaction that the number given him by Claudia Keiser was Petitioner's driver's license number. Mr. Price also contacted Jan's Uniforms to verify that it was Petitioner who had actually written the bad check to that business and was satisfied after that telephone conversation that Petitioner had, indeed, given the foregoing businesses the bad checks they had complained about to FPC. Without making further inquiry, John Price also extended his disbelief of Petitioner's explanation concerning her husband and his girlfriend to all the other complaints against Petitioner of which he was aware, which disbelief contributed to his growing impression that Petitioner was not cooperating in resolving her bad check problem. Despite the issuance of the July 11 oral reprimand to Petitioner, FPC received additional complaints from One Hour Photo on July 11, Meineke Muffler on July 29, and Jan's Uniforms on August 1 that Petitioner had still not satisfied her debts. On August 4, 1988, Mr. Price prepared a written reprimand for Petitioner due to her failure to handle her financial affairs without reflecting discredit upon herself and the company. The written reprimand was presented to Petitioner on August 10, 1988. The written reprimand specified that Petitioner had fourteen days, until August 24, in which to make restitution to the businesses that had registered complaints and to provide FPC proof of restitution. The letter also notified Petitioner that any further complaints or failure to comply with the letter would result in termination of her employment. As of August 10, 1988, Mr. Price understood "further complaints" to mean any complaints regarding checks that were written after August 4, the date of the written reprimand. At some point, a misunderstanding occurred between Petitioner and Mr. Price as to whether he had required her to show him receipts for payment of her debts. At some point, Petitioner explained to Mr. Price that she could not pay off all her debts immediately and in full. On August 23, Petitioner again met with Mr. Price and provided proof that she had made payments to five of the 10 businesses to whom he had required she make restitution by August 24. One or more of the 10 businesses were closed or the accounts were closed out. Petitioner told Mr. Price that she was unable to contact the remaining businesses because her car was in the shop. At that point, Mr. Price orally altered the written reprimand and told Petitioner that he would accept a telephone call from the remaining businesses or other proof from her that she was attempting restitution to the remaining businesses rather than proof of full, immediate restitution to all the businesses. Petitioner also questioned Mr. Price during the August 23 meeting as to what "any further complaints" meant. As of that date, Mr. Price explained to Petitioner that from that point on he understood the questioned term to mean a complaint regarding a new bad check that had been written after August 4 or a complaint that Petitioner was not making restitution pursuant to the payment schedule that she had arranged with each business concerning the old bad checks written prior to August 4. Mr. Price told Petitioner that he considered complaints from businesses on those grounds to constitute a "further complaint," for which Petitioner could be discharged. Mr. Price initiated an August 24 meeting by asking to see Petitioner's receipts. Petitioner submitted proof on August 24 that she had arranged payment schedules with three businesses. At their August 24 meeting, Petitioner also raised her safety concerns about male employees arriving at work intoxicated. Mr. Price regarded her accusations concerning safety hazards to be digression or distraction, refused to discuss the safety issues raised by Petitioner at that time, and concentrated the conversation on her bad checks. At that time, Mr. Price still doubted Petitioner's credibility and resented that Petitioner had not initiated an earlier meeting to show him her receipts. The discussion between Petitioner and Mr. Price became very heated on this occasion, and each screamed at the other. At some point in the conversation, Mr. Price said, "You are doing just fine for a single woman working full-time with two children to raise." Petitioner's perception of this comment was that it was derogatory or discriminatory of her as a working woman. Mr. Price's perception was that the comment was either conciliatory or innocuous. At the August 24 meeting, Petitioner also presented extenuating circumstances why she had not finalized arrangements with the remaining two businesses. Within a few days, she submitted proof for the remaining two businesses. This late compliance by Petitioner substantially met the terms of Mr. Price's prior requirements, and he accepted Petitioner's slightly late compliance as fulfilling her obligations at that point. Although it was not specifically put into words by Mr. Price, it was intended by him that any failure on Petitioner's part to complete her restitution schedules would result in her termination. He did not specifically request her to bring receipts for each payment she made but he expected her to make a fair attempt at restitution and be able to prove it. Mr. Price later asked Mr. Stephens to get further receipts from Petitioner. It is undisputed that Mr. Stephens asked Petitioner if she had her receipts. Apparently a further misunderstanding arose between Petitioner and Mr. Price as to whether Mr. Price was going to pick up the receipts from her in the coal yard or whether he was requiring Petitioner to bring them to him in his centralized office. This misunderstanding was occasioned by the principals relaying their positions through the conduit of Mr. Stephens. Whether Mr. Stephens intended to picture Petitioner in a bad light for Mr. Price or whether it was Petitioner's mere lack of initiative in voluntarily taking receipts to Mr. Price which fueled Mr. Price's perception that Petitioner was uncooperative and was avoiding him is not entirely clear from this record, but, in fact, Petitioner did not bring any receipts to Mr. Price when J. D. Stephens merely asked her if she had them. Mr. Price felt her behavior confirmed his belief that Petitioner was not credible and that she also was resisting his authority. FPC received a telephone call from Don's Pharmacy on September 21 regarding Petitioner's failure to make her payment on September 14 pursuant to the agreed-upon payment schedule. Subsequent to August 24, Mr. Price also received complaints that Petitioner was not paying other businesses as she had agreed to do. Mr. Price then contacted other businesses with whom Petitioner had made payment arrangements and was told that she had not made any payments since the first one. Most businesses had been paid something on September 15. Mr. Price regarded these telephone conversations, whether initiated by the businesses or by himself, as "complaints" under the terms of his last understanding with Petitioner and as coming from businesses that were "more or less clients of FPC." (TR 153-156) After receiving this hearsay information, Mr. Price formed the conclusion that Petitioner had shown him receipts or had had creditors telephone him to indicate their acquiescence in a repayment schedule but that thereafter she simply did not faithfully make the scheduled payments. Prior to her termination, Petitioner never gave Mr. Price a repayment schedule for every business she owed, and he never knew for sure what those repayment schedules might be. No exhibit in evidence discloses what the payment schedules really were. No creditor testified to any due date for Petitioner's payments under their restitution schedule. In September and October 1988, Mr. Price and other managers simply relied on the hearsay statements of business people in the community whom they contacted or who contacted them. Some of their information could have been inaccurate or could have related to accounts that did not fit Mr. Price's final August 23-24 definition of "complaints." However, Petitioner did not testify and did not otherwise refute any of Mr. Price's expressed motivations for her termination, and the evidence is insufficient to establish that she had actually timely met all her payments to all of the businesses which had been contemplated by Mr. Price's final definition of "complaints." It is also clear that some of FPC's managers' time was still being taken up with some complaints from the community about Petitioner. Mr. Price and Danny Douglas, Assistant Site Support Manager, determined to their satisfaction that Petitioner was not complying with her payment schedules and that further counselling sessions or ultimatums from FPC's management to Petitioner would be useless. Likewise, they concluded that assigning Petitioner a suspension without pay would not help her pay her creditors or resolve the problem of complaints to FPC management about her bad checks or relieve the impression she was creating in the business community. Accordingly, with the concurrence of Ed Carnahan, Petitioner was terminated from her employment with FPC on October 13, 1988 for violating company policy, which requires all employees to handle their financial affairs in a manner which does not reflect discredit upon themselves and the company. Sometime between September 20, 1988 and her discharge on October 13, 1988, Petitioner was interviewed by FPC Human Resources Representative Dotty Wertz. Ms. Wertz interviewed Petitioner and approximately eight or nine other female employees as part of an internal company equal employment opportunity (EEO) investigation into a sexual harassment complaint filed by a female employee, Talesa Lloyd, against her supervisor, Jimmy Hitson. Ms. Wertz interviewed Petitioner at the request of Talesa Lloyd. Petitioner was formerly a subordinate of Mr. Hitson, but did not work for him in September or October of 1988. Four or five of the eight or nine female employees interviewed by Dotty Wertz made negative comments about Mr. Hitson. Petitioner was one of those who made such negative comments. FPC ultimately took disciplinary action against Mr. Hitson. The nature of FPC's internal discipline against Mr. Hitson is not in evidence, but apparently it was something short of termination. Talesa Lloyd had been a temporary worker at FPC when she lodged her sexual harassment claim, and she was invited back to work by FPC despite her claim. However, Mrs. Lloyd told FPC that she chose not to go back to work until she heard the outcome of her claim. That information was never reported to her, and she testified at formal hearing herein that she considered the outcome of her claim to be unfavorable to her and the internal complaint procedure in general to be unsatisfactory because no one had ever revealed the outcome of her claim to her, because Ms. Wertz refused to show her Ms. Wertz' report, and because Ms. Wertz told her that Ms. Wertz had been required by the company to rewrite her report. After her interviews, Ms. Wertz disclosed the results of her investigation to management, but did not orally identify to John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens those female employees she had interviewed or what information each individual had provided to her. Ms. Wertz also did not discuss the contents of any of her interviews with John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens, but Mr. Price admitted that he knew before he fired Petitioner that Ms. Wertz had interviewed Petitioner. Mr. Price denied knowing what Petitioner had said to Ms. Wertz. Given the physical layout of the employer's plant and the way in which Ms. Wertz made contact with the Petitioner, it may be reasonably inferred that one or more of her other supervisors also knew that Petitioner had been interviewed by Ms. Wertz and for what reason and further knew that several interviewees had commented unfavorably on Mr. Hitson. Ms. Wertz testified that Mr. Hitson himself could have seen her report and figured out who said what about him, but since Ms. Wertz' report did not attribute comments by name of interviewee, probably only Mr. Hitson or Ms. Wertz could have been sure who said what from reading the report. Mr. Price denied reading the report. There is no evidence that any of Petitioner's other supervisors read the report. Therefore, it is pure speculation that any affected manager knew, prior to her termination, that the Petitioner's comments about Mr. Hitson had been unfavorable. Todd Lemieux is employed by FPC as an assistant fuel handler (as was Petitioner) at its Crystal River site and has held that position approximately five years. In June 1988, Mr. Lemieux came to Mr. Price and reported that he had been arrested for driving under the influence of alcohol (DUI) and would have to serve some time in jail. At that time, Mr. Lemieux' work performance was excellent; he had never missed a day from work or taken any time off, and he had never been the subject of any FPC disciplinary action. Since this was the first community offense made known to FPC, Lemieux was allowed to use all of his accrued vacation and holiday time and a two-week job suspension without pay to serve his jail sentence. Lemieux was not terminated because he had an excellent work record, because he took the initiative of approaching his supervisor to report the violation, and because it was his first disciplinary offense with the company. However, in Lemieux' case, FPC's progressive discipline system of talk, counselling, oral reprimand, and written reprimand was not used, and Lemieux was given a written reprimand letter informing him that any further incidents of that nature would result in termination. Petitioner attempted to show that FPC had accommodated Mr. Lemieux despite a driver's license suspension which affected his work and two prior DUI convictions. Ed Carnahan testified that although he knew about Mr. Lemieux' two prior DUI charges as of the date of formal hearing, he did not know about them when Mr. Lemieux was disciplined in 1988. John Price was under the impression Mr. Lemieux received a permit to drive for employment purposes during his license suspension. John Argernon was employed by FPC as a fuel handler at its Crystal River site. Mr. Argernon was counselled by Mr. Price about his off duty alcohol abuse because Mr. Argernon was frequently tardy arriving at work and because he often used sick leave due to his drinking problem. Mr. Argernon subsequently participated in the FPC Employee Help Program for alcoholism, which FPC offers only one time to all employees at company expense while that employee draws full pay. Mr. Argernon quit the FPC Help Program before graduation, and thereafter, when FPC discovered further evidence of Argernon's alcohol abuse, he was terminated. Several managers, including John Price, had heard gossip that Petitioner was "at Charter" (a rehabilitation facility) during part of the spring of 1988 when the complaints concerning her bad checks reached crisis proportions, but they regarded that situation as confidential and did not probe behind the gossip. No evidence established that Petitioner specifically requested and was denied admission to the FPC Help Program for stress or bad check writing. Mr. Carnahan counselled with Mr. Argernon regarding spouse abuse after reading in the newspaper that Argernon's wife had brought such charges against him but did not pursue the issue since Mr. Carnahan was later informed either by Mr. Argernon or by another supervisor that the spouse abuse charges against Mr. Argernon had been dropped. Mr. Carnahan admittedly did not personally follow up on the matter to verify Mr. Argernon's truth and veracity or lack thereof on the subject of spouse abuse. Mr. Price did not discipline Mr. Argernon for spouse abuse because at the time he did not have any evidence that Argernon was guilty of spouse abuse. At the time Mr. Price recommended Petitioner's termination, he had been warned by Petitioner about intoxicated employees (see Finding of Fact 34) but he had no specific knowledge that Fred Fluchel, a white male fuel handler, had violated any company policy. Mr. Price first learned of a possible rule violation by Mr. Fluchel when Petitioner alleged in her initial charges, dated November 14, 1988, that on one occasion, Mr. Fluchel had come to work drunk and had driven his own pickup truck, containing two underage passengers, into a coal pile on the plant site. At that time, Mr. Price had questioned J. D. Stephens about Petitioner's allegation and Mr. Stephens had told Mr. Price that he was not aware that Mr. Fluchel had violated company policy as alleged. Mr. Price thereafter relied on Mr. Stephens' representation without further investigation. However, two days prior to the formal hearing herein, Mr. Price determined, contrary to Mr. Stephens' prior representations, that Mr. Fluchel had, indeed, violated company policy in such a drunken truck-driving incident on the job site, and Mr. Price testified at formal hearing that appropriate disciplinary action will now be taken against Mr. Fluchel. Such disciplinary action against Mr. Fluchel had not been taken by FPC as of the date of formal hearing herein. Messrs. Lemieux, Argernon, and Fluchel constitute employees "substantially similar" to Petitioner. Jim DeNicola, a white male, is employed as a Senior Maintenance Supervisor at FPC's Crystal River facility. He is not in a union bargaining unit like Petitioner. Also, his job description is supervisory and dissimilar in substance and authority to Petitioner's, but since FPC's Human Resource Manual applied to him as it did to all other FPC employees, including Petitioner, he may be considered an employee who is "substantially similar" to Petitioner for purposes of this proceeding. In 1985, before Petitioner was promoted to assistant fuel handler, Mr. DeNicola borrowed some furniture from FPC for his personal use. In so doing, he required at least two female employees, Petitioner and Lynne Graves-Donaldson, to assist in moving the furniture from the FPC plant site to his home. Both Mrs. Graves-Donaldson, who testified, and Petitioner, who did not testify, perceived that Mr. DeNicola's actions were stealing at worst, and at best, were done without permission of appropriate supervisors. Mrs. Graves-Donaldson expressed no concerns that she was asked to do heavy labor or that moving the furniture amounted to FPC employees doing Mr. DeNicola's personal business on company time. Mr. DeNicola returned the furniture to the FPC site after he no longer needed it. Mr. DeNicola was not disciplined by FPC for borrowing the furniture. Although some of Mr. DeNicola's middle management peers and some superiors apparently "looked the other way" over the furniture borrowing episode because Mr. DeNicola was going through a divorce, and although others did not know that he was borrowing the furniture at all, the evidence as a whole also does not reveal that FPC has any specific policy on such a subject or that the incident got any publicity in the community or had any effect on community perception of FPC.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a final order dismissing Petitioner's Petition for Relief and denying the relief sought thereby. DONE and ENTERED this 20th day of June, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 20th day of June, 1991.
The Issue The issue is whether, under the Florida Retirement System, Petitioner occupied a regularly established position while working as a pool respiratory therapy technician at Jackson Memorial Hospital for 12 years.
Findings Of Fact Petitioner is a certified respiratory therapy technician. Her first job as a respiratory therapy technician was at Mercy Hospital in Miami. Later, she worked at Coral Gables Hospital in a similar capacity. In May or June 1991, Petitioner began working at Jackson Memorial Hospital. She and Jackson Memorial Hospital executed a Respiratory Pool Contract for Therapists and Technicians. The contract referred to Petitioner as a "per-diem employee." The term of the contract was from May 28, 1991, through October 31, 1991, subject to renewal, but the parties never renewed the contract in writing. After listing the benefits in the section addressing compensation, the contract provided: "[Jackson Memorial Hospital] participates in the State Retirement System after four months of continuous employment." The reference to the "State Retirement System" is to the Florida Retirement System (FRS), in which Jackson Memorial Hospital participated at all times material to this case. The contract required Petitioner to work at least two shifts per pay period and to notify her supervisor by the tenth day of the month as to the days and hours that she will be available to work during the following month. The contract stated that either party may cancel a scheduled work shift, but only on at least two hours' notice to the other party. The contract provided that Jackson Memorial Hospital may terminate the contract without case on 14 days' notice. The contract provided that Jackson Memorial Hospital "shall exercise exclusive control and/or direction over the method and matter by which [Petitioner] performs [her] professional services and functions to the extent permitted by law." The contract subjected Petitioner to the supervision of her supervisor and required that she conform to all rules and policies of Jackson Memorial Hospital, including its "Standards of Excellence," dress code, and personnel policies. During her employment with Jackson Memorial Hospital, Petitioner has received training, including directions to follow a strict script while interacting with patients in their rooms. Immediately upon commencing employment with Jackson Memorial Hospital, Petitioner and her supervisor agreed that, unless Petitioner notified her supervisor to the contrary by the tenth of the preceding month, Petitioner would work a specific shift for 40 hours per week from Tuesday through Saturday during each week of the month. This agreement remained in effect until two or three years ago, when Petitioner and her supervisor agreed that Petitioner would work only Sunday and Monday each week, unless Petitioner notified the supervisor to the contrary by the tenth of the preceding month. From 1991 through the present, Petitioner has suffered no breaks in employment, meaning that she always has worked for at least part of each calendar month. In almost every month, she worked for at least very substantial parts of the month. She reported to work despite the birth of grandchildren and hurricanes. Perhaps four or five times each year, Jackson Memorial Hospital would not have enough work to warrant Petitioner's presence. Routinely, Petitioner's supervisor asked her to work a double shift because the hospital had too much work relative to available staff. During her 12-year career with Jackson Memorial Hospital, Petitioner has received numerous commendations for outstanding professional performance from her employer. From 1991 through the present, Petitioner has worked as a respiratory therapy technician only at Jackson Memorial Hospital. During this time, Petitioner has earned about 20 percent more than respiratory therapy technicians who are not in the pool. However, the record provides no basis to infer that this differential reflects the market value of the retirement contributions that the employer is making on behalf of the non- pool employees. These non-pool employees also enjoy other benefits not extended to pool employees, such as health, life, and dental insurance, paid holiday and sick leave, overtime for more than 40 hours' work per week, and flexible benefit plans for medical and dependent child care expenses. Jackson Memorial Hospital made FRS contributions for Petitioner for January 1992, June and July 1994, June 1995, and September 1995. Jackson Memorial Hospital has deducted Social Security contributions and federal income tax withholding from every paycheck that it has given to Petitioner. Although Petitioner's W-2 forms for 1991-93 were unavailable, her W-2 forms for 1994-96 showed that she participated in a pension plan. The remaining forms were illegible or showed no pension plan. The only reason that Petitioner could not leave the pool of respiratory therapy technicians, as she requested to do three times, was that she was not certified by the National Board of Respiratory Care. Respondent has not questioned that Petitioner is an employee, rather than an independent contractor. Jackson Memorial Hospital has treated her as an employee in taking contributions and withholding from Petitioner's paychecks. Respondent has adopted a rule, set forth in the Conclusions of Law, setting forth the guidelines to determine whether an individual is an employee or independent contractor. Petitioner satisfies each of the 20 tests, indicating that she is an employee, not an independent contractor. Overall, Petitioner is clearly subject to the close control of her employer, which has even scripted her conversations with patients. Among the specific tests, Jackson Memorial Hospital has trained Petitioner and integrated her technical services into the professional services delivered to its patients. Petitioner has delivered her services personally to Jackson Memorial Hospital's patients, has had a continuing relationship with her employer over 12 years, works set hours agreed upon in advance by her employer, works fulltime exclusively for Jackson Memorial Hospital, works on the employer's premises, uses the tools and material provided by her employer, works for a wage rather than a profit expectancy, does not offer her services to the general public, may quit at anytime, and is subject to firing at anytime. The real issue in this case goes to the special emphasis that Respondent's rules give to one of the tests of an independent contractor: the continuing relationship. In the language of the rule, which is discussed in the Conclusions of Law, the question is whether Petitioner has been filling a temporary position. The specific rule provision applicable to this case requires a factual determination of whether she occupies an "on call position," which is by definition a temporary position ineligible for FRS coverage because it is not a regularly established position. An "on call position" is a position filled by an employee who is "called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied." Twelve years' experience teaches that Petitioner was not called to work unexpectedly. Early each month, Petitioner and her employer agreed upon her work schedule for the following month. Rarely did her employer cancel a shift of Petitioner. Occasionally, the employer needed Petitioner to remain at work past her scheduled shift. But neither of these situations occurred with such frequency as to undermine the finding that Jackson Memorial Hospital scheduled Petitioner's work schedule well in advance, and, each month for 12 years, Petitioner performed her job in strict accordance with this schedule. The two remaining elements of the rule defining "on call positions" also do not apply to this case. Petitioner did not work "brief periods." She has worked day after day, week after week, year after year, for 12 years. The word "brief" does not apply to any aspect of her employment career with Jackson Memorial Hospital. Nor has her employment "cease[d]" at anytime during these 12 years.
Recommendation It is RECOMMENDED that the Division of Retirement enter a final order determining that, following the sixth consecutive calendar month after the commencement of employment at Jackson Memorial Hospital in 1991, Petitioner has been employed in a regularly established position under the Florida Retirement System. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 24th day of February, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Mel Correa Qualified Representative c/o Nora H. Correa 8350 Northwest 168th Street Miami Lakes, Florida 33016-3467 Thomas E. Wright Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. 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 18th day of February, 2010.
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioners are persons subject to chapter 394, part V, and are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook and internal memorandum are unpromulgated rules which are imposed on FCCC residents, and that the same are an improper exercise of delegated legislative authority as de facto agency rules that have not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes.
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1992, a Florida- certified nursing assistant (CNA). She presently works part-time as a CNA for Quality Care Nursing Services, Inc., and is attending school (Sheridan Vocational School) to become a licensed practical nurse. In August of 1994, Petitioner was the owner/administrator of Arianism Home, an Adult Congregate Living Facility,3 located at her residence at 741 Northeast 177th Street in Miami, Florida (Petitioner's ACLF). She had a standard license issued by Respondent to operate her ACLF. The license had an effective date of March 20, 1994, and an expiration date of March 19, 1996. It allowed her to house a maximum of six residents at the facility at any one time. At the time (August of 1994), Petitioner shared her residence with her then 18-year-old daughter, Demetri Kinchen, and Ms. Kinchen's two young children. Ms. Kinchen helped Petitioner operate the ACLF. Also assisting Petitioner was a paid employee, Larome Hall, who, in August of 1994, was 21 years of age. Petitioner also owned the residential structure and property located adjacent to her ACLF (at 751 Northeast 177th Street). During the period that her license was in effect, Petitioner had at least six residents at her ACLF at all times. The residents suffered from mental disorders and received social security disability income and optional state supplementation (OSS) benefits. Although Petitioner had a standard license and not a limited mental health license, she received payments from the state (OSS payments) for these residents (notwithstanding that a limited mental health license was required in order to receive such payments for these residents). Because of their mental illness, the residents of Petitioner's ACLF needed to be supervised 24 hours a day, seven days a week. On August 8, 1994, a neighbor of Petitioner's reported to the Department of Health and Rehabilitative Services (HRS) that the residents of Petitioner's ACLF were receiving inadequate supervision. According to the reporter, residents of the ACLF had knocked on the reporter's door "many times" during the day and "as late as 10:00 or 11:00 p.m.," and, the day before, one resident, S. K., came to the reporter's door "bleeding from both legs, her elbow and her face" and told the reporter that she (S. K.) had been "hit by a car." At the time of the accident, Petitioner was away from the facility. She had gone shopping, leaving the task of supervising the residents to Ms. Kinchen and Mr. Hall, neither of whom, it appears, had received the requisite training to fulfill this responsibility.4 The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-073142) and investigated by Jeanette Henad, a protective services investigator for HRS. As part of her investigation, Ms. Henad visited Petitioner's ACLF and conducted several interviews. In the written "investigative decision summary" (IDS) Ms. Henad prepared following the conclusion of her investigation, she described, as follows, the "observations" she made during her visit: All residents were interviewed, 7 clients in 751 NE 177th Street and 4 clients in 741 [NE 177th Street] as follows: S. K.; C. W.; T. M.; and L. S. The four above stated clients were found in 741. Daughter of Cynthia Lee, Demetri[] [Kinchen] and Demetri's 2 month old baby w[ere] located in 751. There was no one available in 741. In 751 the home had a lock on the refrigerator and lunch was observed, but the lunch was not what was posted on the menu. Medication book was observed but the last medication entry was for 8/2/94 and it was now 8/9/94. Home met minimal standards of cleanliness and there was food available for human consumption. . . . . Ms. Henad's IDS reflected that Ms. Kinchen had made the following "statements" when interviewed: My mother is not here right now; 2) I am taking care of the clients; 3) Most of the clients from 741 come over here during the day. Most of the clients come and go as they please; 4) Larome Hall administers the medications but he is not here right now. He administers the meds twice a day; 5) All of the clients like it here. We get our clients from Locktown, and other agencies; 6) I know that the medications have been given. I do not know why the med book is not updated; 7) If clients refuse to take their medications, it is noted and client's physician is notified; 8) The clients take care of themselves. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified. Although no harm came to any individual involved, technically according to the alleg. matrix, neglect due to lack of supervision must be verified. Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 073142 was classified as confirmed, with Petitioner named as the perpetrator. On August 17, 1994, HRS received a second report of inadequate supervision at Petitioner's ACLF. This report was from an employee of Respondent's Quality Assurance and Licensing unit, who advised that there were four mentally ill "clients" of Petitioner in the residential structure located on the property adjacent to the ACLF (at 751 Northeast 177th Street) and that these clients were "not being supervised." According to the reporter, Ms. Kinchen, along with her two children, were "next door" at 741 Northeast 177th Street. Petitioner, once again, had gone shopping and was not present at either the 741 Northeast 177th Street location or the 751 Northeast 177th Street location. The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-076483). Ms. Henad was delegated the task of investigating this report as well. As part of her investigation, she paid a return visit to the facility and, as she had done as part of her earlier investigation, conducted several interviews. In the IDS she prepared following the conclusion of her investigation of this second report, Ms. Henad described, as follows, the "observations" she made during her return visit to the facility: All four clients were observed in the home located next to the ACLF which is licensed. Cynthia Lee escorted [the protective investigator] to the location of 741 NE 177th Street. Home was clean, and clients appeared appropriately dressed. Clients assessed level of risk is intermediate due to the lack of supervision. . . . Ms. Henad's IDS reflected that Petitioner had made the following "statements" when interviewed: The clients usually come to 751; 2) Larome Hall is sometimes with them; 3) The clients are allowed to come and go as they please; 4) I usually am in 751 but I check on the clients on a regular basis; 5) The clients have been with me for a long time and I take good care of them; 6) 741 is not licensed but I have applied for a license;5 7) I am licensed for 76 but I have 10 clients; 8) I get my clients from Locktown and other mental facilities. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified; 3) Unsupervised caretaker present: Verified; although no harm came to any individual involved, according to the allegation matrix, due to lack of supervision, must be verified; . . . Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 076483 was classified as confirmed, with Petitioner named as the perpetrator. Petitioner's license to operate her ACLF expired on March 19, 1996. Her application to renew her license was denied because of the two confirmed reports of adult neglect (FPSS Report Number 94-073142 and FPSS Report Number 94-076483) in which she had been named the perpetrator.7 Petitioner has nonetheless continued to operate her ACLF. In August of 1998, Petitioner was arrested and charged, in Dade County Circuit Case Number F98029861, with operating a nursing facility without a license. On October 22, 1998, she pled no contest to the charge and was placed on probation for two years and ordered to pay $1,000.00 to the Adult Emergency Trust Fund. Adjudication of guilt was withheld. While Petitioner may be "of good moral character" and "not represent a danger to the health, safety, and welfare of the patients while working as a CNA" (as Respondent has determined, as reflected in its May 25, 1999, letter to Petitioner8), it has not been demonstrated that, subsequent to the incidents described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483, Petitioner has taken any measures (such as undergoing additional training related to the operation and maintenance of an Assisted Living Facility) designed to make her a better educated and more responsible Assisted Living Facility administrator who can be counted on to discharge the supervisory responsibilities of that position in a manner that does not place residents at risk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's request that she be granted an exemption that would allow her to be employed as an Assisted Living Facility administrator. DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2000.
Findings Of Fact Introduction On February 26, 1988 respondent, Department of Health and Rehabilitative Services (HRS), through its District IX office, advertised a Request for Proposal (RFP) in the Florida Administrative Weekly inviting qualified and interested organizations and vendors to submit proposals for the designation of an Area Agency on Aging in District IX. The designation would run from May 2, 1988 through the end of the calendar year but the successful vendor could be expected to be redesignated in subsequent years. According to the advertisement: Proposals will be received by District IX until 12:00 p.m., EST, March 24, 1988, for the designation of an Area Agency on Aging authorized under Title III of the Older Americans Act as amended, within the jurisdictional areas of Martin, St. Lucie, Indian River, Okeechobee and Palm Beach Counties. * * * Contract awards will be based on approximately 75 percent federal funds, 11 percent general revenue and 14 percent local matching funds. * * * Written inquiries concerning the Request for Proposals will be received until 4:00 p.m., EST, March 11, 1988. A Bidders Conference, to review the proposed format and contract award process, will be held on March 4, 1988. * * * Under this proposal, HRS intended to award the contract to the best qualified firm since price proposals were not being submitted. To this extent, the proceeding differs from the typical state project where the contract is ordinarily awarded to the lowest and most responsive bidder. In response to the above RFP, petitioner, Banyan Area Agency on Aging, Inc. (Banyan), timely submitted its proposal. As it turned out, Banyan was the only organization that filed a bid. After being reviewed by a seven person evaluation committee, the proposal was given a score of 480 out of a possible 1525 and a recommendation that it be rejected. This recommendation was later adopted by the District Administrator. This decision was conveyed to petitioner by letter dated April 4, 1988. That prompted a request for hearing by petitioner to challenge the preliminary agency action. As grounds for contesting the action, petitioner contended the agency was arbitrary and capricious in rejecting its proposal. If its preliminary action is sustained, HRS intends to seek authority from the Department of General Services to negotiate a noncompetitive bid. Under this process, HRS desires to designate, after a screening process, one person from each of the five counties to serve on the board of a corporation to be established to run the program. Thus, HRS does not intend to readvertise the RFP and seek competitive proposals a second time. The Contract The contract in question is funded principally through federal grant dollars under the federal Older Americans Act of 1965, as amended. The monies, commonly known as Title III funds, are used to provide programs for senior citizens. Respondent is the State agency charged with the responsibility of administering the program funds. To receive federal funds, HRS was required to prepare a state plan and submit it to the U.S. Commissioner on Aging for his approval. A part of that plan calls for HRS, or District IX in this case, to designate an area agency on aging (AAA) to plan and administer a comprehensive and coordinated system of services for the aging in the five county area of Palm Beach, Okeechobee, Indian River, Martin and S. Lucie Counties. Among other things, the local AAA must develop an area plan for supportive services, senior centers and nutrition services in the five county area. The AAA will receive $300,000 to cover administrative costs in administering the program and will be in charge of dispensing several million dollars annually in grant dollars for aging programs. District IX had previously designated Gulfstream Area Agency on Aging (Gulfstream) as its AAA. However, due to a combination of faulty management, lack of supervision and other factors, Gulfstream was designated as AAA in May, 1987. Since then, HRS has received several waivers from the Commissioner on Aging but now faces a mandate to designate a District IX AAA by October 1, 1988 or lose its federal funding. To avoid a recurrence of the Gulfstream problem, the HRS District IX contract manager, and several other district personnel, prepared a comprehensive RFP to be issued in conjunction with the selection of a new AAA designee. After a draft was assembled at the local level, the RFP was forwarded to HRS' Tallahassee office where further refinements were made. The final product has been received in evidence as petitioner's exhibit 9 and respondent's exhibit 11. According to the District IX contract manager, the RFP is the "state of the art" in terms of what an AAA ought to be. The RFP is a voluminous document, weighing some 6 1/2 pounds according to Banyan, and requires a great deal of information and detail regarding the AAA organization, procedures, and program plans and goals to satisfy the federal act. The RFP was given to interested organizations, including Banyan, around March 1, 1988. This gave vendors approximately three and one-half weeks to prepare and submit a proposal. Only Banyan was interested in being the designee and thus was the only bidder on the job. Its proposal contained 135 pages. Evaluation Process HRS created a seven person evaluation committee to review the proposals. The committee included five HRS employees and two non-HRS members. All members were given Banyan's proposal prior to the selection date. On March 28, 1988 the committee met and each member independently evaluated Banyan's proposal. Although a top score of 1525 was theoretically possible, Banyan received an average overall score from each There of 480, or a rating of approximately thirty-one and one half percent. After the scores were tallied, Banyan was given one hour to orally explain its proposal before the full committee. At the conclusion of the presentation, the committee voted unanimously to reject the proposal. The reasons for rejecting Banyan's proposal are set forth in respondent's exhibit 2. The three primary deficiencies, as broadly stated, were the "proposal did not develop ideas fully enough to demonstrate a clear understanding of the needs and conditions of the District IX 60+ population," the proposal "did not demonstrate a clear understanding of the role and responsibility of area agency on aging nor was there evidence of administrative capability,' and (c) the proposal "did not offer assurance that current board members fully understood their position as the governing board." At hearing, several members of the committee amplified on the above three shortcomings and pointed out specific deficiencies in Banyan's proposal which led them to reject the proposal. For example, the proposal failed to focus on areas outside of Palm Beach County, did not contain a proposed budget, lacked minority representation, failed to fully identify goals and objectives, did not include a detailed description of the fair hearing process and the make- up and procedure of the advisory council and omitted the corporation's bylaws. Given these deficiencies, and others, HRS was justified in rejecting the bid. Petitioner's Case Petitioner contends that three and one-half weeks was too short a time to prepare a responsible proposal to the RFP. In this regard, HRS acknowledged it was a lengthy RFP, but it considered the time adequate for a qualified and experienced organization, particularly since much of the RFP was reference material. Banyan also pointed out that its board of directors was made up of highly qualified people with impressive work experience. While this is true, as evidenced by testimony at hearing, none were experienced in managing a federally funded program of this magnitude. Banyan further stated that, after the proposal was filed, it could have corrected or expanded on many of its abbreviated responses. However, once the proposal was filed, such changes were impermissible. Finally, Banyan conceded that while many of its responses were brief and nonspecific, this was because Banyan intended to rely upon HRS for technical assistance to implement the programs. However, the RFP called for specific, detailed responses so that HRS could properly evaluate the proposal. Allegations of Bias or Impropriety There is no evidence that the committee acted unfairly or improperly during the evaluation process or that any eber was personally biased towards Banyan. There is also no evidence that HRS rejected the bid so that it could "control" the management of the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the protest filed by petitioner be DENIED and that a Final Order be entered confirming the rejection of petitioner's proposal. 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: Mr. Colman B. Stein 100 Worth Avenue Apartment 416 Palm Beach, Florida 33480 Laurel D. Hopper, Esquire 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner should have been awarded the contracts for Florida Department of Transportation (FDOT) Project No. 99004-3589 and FDOT Project No. 86999-3504.
Findings Of Fact On March 16, 1990, the Florida Department of Transportation entered the following Final Order in Case No. 89-3072: By certified mail, on March 5, 1989, the FLORIDA DEPARTMENT OF TRANSPORTATION (DEPARTMENT) gave notice to Petitioner, SIGNAL CONSTRUCTION COMPANY, INC., of intent to suspend their Certificate of Qualification pursuant to Fla. Admin. Rule 14-23 for unsatisfactory progress of work on State Project Nos. 10000-3352, 10500-3638 and 10500-3635. On May 15, 1989, Petitioner received such notice and requested an administrative hearing. The matter was referred to the Division of Administrative Hearings. Prior to hearing, the Petitioner filed a Notice of Voluntary Dismissal Without Prejudice. On December 6, 1989, the Hearing Officer, K. N. Ayers, entered an order closing the filed and cancelling the hearing. Therefore, it is ORDERED that SIGNAL CONSTRUCTION COMPANY, INC. is determined to be delinquent on State Projects 10000-3352, 10500-3638 and 10500-3635; and IT IS FURTHER ORDERED that the Certificate of Qualification of SIGNAL CONSTRUCTION COMPANY, INC. is suspended as of the date of this Order and the suspension shall continue until State Projects 10000-3352, 10500-3638 and 10500-3635 are conditionally accepted by the DEPARTMENT and for 296 days thereafter (May 26, 1989 to the date of this Final Order). During the period of suspension, neither SIGNAL CONSTRUCTION COMPANY, INC., nor its affiliates shall bid on any DEPARTMENT OF TRANSPORTATION construction contract regardless of the amount of bid, nor be approved as a subcontractor on any DEPARTMENT contract. DONE AND ORDERED this 16th day of March, 1990. The Florida Department of Transportation's (FDOT) District IV consists of the following Florida Counties: Indian River, St. Lucie, Martin, Palm Beach, and Broward. At the times pertinent to this proceeding, Teresa Martin was the Assistant District Contracts Administrator of FDOT District IV whose responsibilities included the letting of construction and maintenance contracts for projects that do not exceed $250,000. On or about October 12, 1990, Signal Construction Company (Signal), in response to advertisements for bids, requested bid documents from the District IV staff for several projects that were to be let. Included in those projects were State Job Numbers 86999-3504 and 99004-3589. Because of the dollar limit on these projects, it was within Ms. Martins's authority to review the responses and to award the bids. Prior to providing the bid documents to Signal, Ms. Martin had a member of her staff check the suspended bidders list to verify that Signal was not a suspended bidder. Because the list was outdated, Signal was not listed on the suspended bidder list used by District IV, and the bid documents were furnished to Signal. Signal did not advise the District IV staff that it had been suspended because it had challenged the suspension and was involved in litigation with FDOT over the suspension. Signal knew of the order entered by FDOT on March 16, 1990, but considered its suspension abated until resolved by the pending litigation. Pursuant to Signal's request, FDOT assembled a set of bid documents for State Job Numbers 86999-3504 and 99004-3589 as requested by Signal and delivered the same to Signal. FDOT also prepared and delivered an invitation to bid which solicited Signal's bid on these projects. Signal, in response, prepared bids for State Job Numbers 86999-3504 and 99004-3589 and at least one other project that FDOT had advertised. The invitation to bid advised bidders that bids would be accepted until November 2, 1990, at 10:30 a.m., and that there would be a mandatory pre-bid conference for these projects on October 23, 1990. In accordance with the requirements of the invitation to bid and the pertinent bidding documents, representatives of Signal attended the mandatory pre-bid conferences for State Job Numbers 86999-3504 and 99004-3589. Representatives of Signal signed the roster of attendance. Thereafter, Signal continued preparation of its competitive bids for projects State Job Numbers 86999-3504 and 99004-3589. On October 29, 1990, FDOT prepared and issued an addendum to the bid documents for both project 86999-3504 and for project 99004-3589. These addenda were delivered by FDOT to Signal by express mail, return receipt requested. Both addenda notified Signal, as a potential bidder, that the deadline for the submission of bids had been extended to Friday, November 9, 1990, at 1:30 p.m. Signal timely submitted competitive bids for State Job Numbers 86999- 3504 and 99004-3589. Ms. Martin thereafter evaluated all bids submitted for these projects, including the bids of Signal. Ms. Martin intended to award the bids for State Job Numbers 86999-3504 and 99004-3589 to Signal until she was informed by Mr. Reynold Meyer, an attorney for FDOT, that Signal was a suspended bidder. Ms. Martin had not known that Signal had been suspended as a bidder until she was so informed by Mr. Meyer on November 15, 1990. This information was provided Ms. Martin in response to a routine inquiry she made to FDOT's Contract Administration Office in Tallahassee. This inquiry was made even though the bidding documents pertinent to these projects did not require the bidder to hold a Certificate of Qualification to bid or to be prequalified as a bidder. After her conversation with Mr. Meyer on November 15, 1990, Ms. Martin disqualified Signal's bids on State Job Numbers 86999-3504 and 99004-3589. If there had been no question as to whether Signal was eligible to bid, Signal would have been awarded the contracts for both State Job Numbers 86999-3504 and 99004-3589. Neither Ms. Martin or anyone else from FDOT informed Signal that it had been disqualified as a bidder until the bid tabulations were posted by Ms. Martin on November 28, 1990. The Certificate of Qualification that had been suspended by FDOT's Final Order of March 16, 1990, had been issued to Signal on November 3, 1989, and was scheduled to expire on November 30, 1990. The forms necessary for Signal to renew its Certificate of Qualification had been furnished Signal by FDOT's Contracts Administration Office on October 2, 1990. The administrative proceeding in which FDOT's March 16, 1990, Final Order was entered was commenced by FDOT issuing on May 5, 1989, a Notice of Intent to suspend Signal's Certificate of Qualification. Signal challenged the notice and requested a formal administrative hearing in that proceeding. Thereafter, Signal filed a Notice of Voluntary Dismissal Without Prejudice, which resulted in the closing of the file of the Division of Administrative Hearings and the return of the matter to the referring agency. Thereafter, FDOT issued its Final Order on March 16, 1990. Signal appealed the Final Order of March 16, 1990, to the First District Court of Appeal. There was no evidence that any order was entered which stayed the Final Order of March 16, 1990, while the matter was on appeal. Shortly after it voluntarily dismissed the administrative proceeding, Signal filed suit in the Circuit Court in and for Hillsborough County, Florida, in an effort to resolve its dispute with FDOT, which contained a claim by Signal for monetary damages from FDOT. During the period from March 16, 1990, through November 28, 1990, Signal continued to bid for award of contracts let by FDOT based on its unilateral understanding that the Final Order of March 16, 1990, was stayed pending appeal. During this time, Signal was not awarded any FDOT contracts as the prime contractor, but it did perform work as a subcontractor on an FDOT project. It was not established which FDOT officials permitted Signal to continue to bid or who authorized Signal to accept work on an FDOT project as a subcontractor. On November 6, 1990, representatives of Signal and FDOT met in FDOT's District VII offices in Tampa, Florida, in an effort to negotiate a settlement of all matters then in dispute between Signal and FDOT, including the claims asserted in the circuit court action and the matters raised in the appeal of the Final Order dated March 16, 1990. After three offers and counteroffers, the parties were unable to reach settlement. On November 8, 1990, FDOT requested that Fred Young of Signal's parent corporation to meet with Jimmy Lairscey, the District VII Construction Engineer, on November 9, 1990, in an effort to further negotiate a settlement of all issues. Both Mr. Young and Mr. Lairscey had actively participated in the settlement negotiations of November 6, 1990, and these two representatives met again on November 9, 1990. Following this meeting, Signal was informed that verbal settlement had been reached on the matters upon which negotiations conducted on November 6, 1990, had collapsed. At Signal's request Mr. Lairscey advised FDOT District VI that Signal had been reinstated as a qualified bidder for a project that required Signal's prequalification as a bidder. On November 9, 1990, the parties contemplated that the settlement terms would have to be reduced to writing. During telephone conversations following the November 9 meeting between Mr. Lairscey and Mr. Young, counsel for the respective parties became aware that there was a disagreement between them as to the continued validity of the Final Order of March 16, 1990. On November 15, 1990, Mr. Meyer, as counsel for FDOT, wrote Signal's counsel a letter which stated, in pertinent part, as follows: Our conversations on November 9, 13 and 14, all of which took place subsequent to the meeting between Mr. Lairscey and Mr. Young, confirm that our clients have been unable to negotiate a settlement through the date of this letter. In order to avoid confusion, this letter reaffirms the Department has rejected all of your client's offers and your client has rejected all of the Department's counteroffers. As of this date, none of the Department's counteroffers are available for acceptance by your client. This letter confirms, however, the Department's continued willingness to negotiate. On November 17, 1990, John A. Barley, counsel for Signal responded to Mr. Meyer's letter of November 15, 1990. In this response, Mr. Barley summarized the negotiations between Signal and FDOT and asserted the position that settlement had been reached on November 9, 1990. On November 28-30, 1990, representatives of Signal and FDOT resumed negotiations in an effort to resolve the disputes between them through means of a written settlement agreement. On November 28, 1990, Ms. Martin posted the bid tabulations for State Job Numbers 86999-3504 and 99004-3589. Signal learned from the posting of the bid tabulations that it had been disqualified as a bidder on these two projects. Signal did not know prior to the bid posting that FDOT had disqualified it as a bidder on these two projects, although it was aware that FDOT considered the Final Order of March 16, 1990, to be effective. On November 30, 1990, FDOT and Signal entered into a written settlement agreement which provided, in pertinent part, as follows: On March 16, 1990, the DEPARTMENT issued its Final Order in Case No. 89-3072 declaring SIGNAL delinquent on State Project Nos. 10000-3352, 10500-3638 and 10500-3635. In that Final Order, SIGNAL's Certificate of Qualification was suspended from March 16, 1990, until State Project Nos. 10000-3352, 10500-3638 and 10500-3635 are conditionally accepted and for 296 days thereafter. SIGNAL timely filed it Notice of Administrative Appeal resulting in Case No. 90-1094, which is currently pending before the District Court of Appeal, First District. The parties have entered into this Joint Stipulation and Settlement to resolve the subject of appellate Case No. 90-1094 amicably without further litigation. By this Joint Stipulation and Settlement, the DEPARTMENT amends the first sentence of paragraph three of its Final Order in Case No. 89-3072 dated March 16, 1990 as follows: IT IS FURTHER ORDERED that the Certificate of Qualification of SIGNAL CONSTRUCTION COMPANY, INC., is suspended as of the date of this Order (March 16, 1990) until and including the date of the execution by SIGNAL of the Joint Stipulation and Settlement (the 30th day of November 1990). * * * 24. Signal reserves its rights to protest the Department's decision determining Signal a nonresponsive bidder on the two District 4 mini contracts let by District 4 on November 9, 1990. Paragraph 24 of the settlement agreement refers to the projects that are the subject of this proceeding, but it incorrectly reflects that Signal was determined to be a nonresponsive bidder. FDOT disqualified Signal's bids because of the March 16, 1990, Final Order, not because the bids were nonresponsive. The only substantial change made in the terms and conditions of settlement stated in the "Joint Stipulation and Settlement" and the terms and conditions of settlement orally agreed upon on November 9, 1990, was the provision making FDOT's March 16, 1990, Final Order effective through November 30, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protests filed by Signal. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 2 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made or as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact contained in the last sentence of paragraph 9 are considered preliminary matters. The proposed findings of fact in paragraph 10 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record. The proposed findings of fact in paragraph 13 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order, and are rejected in part as being unsubstantiated by the record. The proposed findings of fact in paragraphs 15 are adopted in part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 16 are adopted in material part by the Recommended Order, and are rejected in part as being subordinate to the findings made. The proposed findings regarding the request to have Mr. Lairscey notify District IV of the reinstatement of Signal is rejected as being contrary to the greater weight of the evidence. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 18 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made. The proposed findings of fact in paragraph 19 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 20 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraph 1 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 9 are rejected as being subordinate to the findings made. COPIES FURNISHED: John A. Barley, Esquire John A. Barley & Associates, P.A. 400 North Meridian Street P.O. Box 10166 Tallahassee, Florida 32301 Susan P. Stephens, Esquire Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Ben G. Watts Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Attention Eleanor F. Turner Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4, The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Administrative Complaint is voluntarily dismissed. ORDERED at Tallahassee, Florida, on this__2S day of a 2013. 1 Filed March 1, 2013 12:54 PM Division of Administrative Hearings
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this Et of Fefyruc- =f , 2013. Richard Shoop, Agency Cle Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Andrea M. Lang, Senior Attorney Zia Butt, CEO | Office of the General Counsel North Port Retirement Center, Inc. d/b/a Agency for Health Care Administration The Gardens of North Port (Electronic Mail) 4950 Pocatella Avenue North Port, Florida 34287 (U.S. Mail) | Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 2012005771 NORTH PORT RETIREMENT CENTER, INC. d/b/a THE GARDENS OF NORTH PORT, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (hereinafter “the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, NORTH PORT RETIREMENT CENTER, INC. d/b/a THE GARDENS OF NORTH PORT (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and states: NATURE OF THE ACTION This is an action to impose an administrative fine against an assisted living facility in the sum of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) based upon one (1) Class II violation pursuant to Section 429.19(2)(b), Florida Statutes (2011), and to assess a survey fee in the amount of FIVE HUNDRED DOLLARS ($500.00) pursuant to Section 429.19(7), Florida Statutes (2011). JURISDICTION AND VENUE 1. The Court has jurisdiction over the matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42 and EXHIBIT 1 120.60, and Chapters 408 and 429, Florida Statutes (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable federal and state regulations, statutes and tules governing such facilities. Chapters 408, and 429, Florida Statutes (2011); Chapter 58A-5, Florida Administrative Code. 5. The Respondent was issued a license by the Agency (License Number 10843) to operate a 50-bed assisted living facility located at 4900 South Sumter Boulevard, North Port, Florida 34287, and was at all times material required to comply with the applicable state regulations, statutes and rules governing assisted living facilities. COUNT I The Respondent Failed To Obtain A License For Operation In Violation Of Sections 429.08(1)(a) And 408.812, Florida Statutes (2011) 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. Pursuant to Florida law, Section 429.08, Florida Statutes (2011), applies to the unlicensed operation of an assisted living facility in addition to the requirements of Part II of Chapter 408. Section 429.08(1)(a), Florida Statutes (2011). Pursuant to Florida law, a person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, 2 safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under Section 408.814, Florida Statutes (2011) and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation.(6) In addition to granting injunctive relief pursuant to subsection (2), Florida Statutes (2011), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. Section 408.812, Florida Statutes (2011). 8. On or about February 7, 2012 through February 8, 2012, the Agency conducted a Biennial Survey in conjunction with a Complaint Survey (CCR# 2011013865) of the Respondent’s facility. 9. Based on observation, review of the facility license, resident, staff interviews and two (2) of four (4) resident records reviewed, the facility provided services to one (1) of eleven (11) residents reviewed, specifically Resident number eleven (11), and fifteen (15) independent residents which is beyond the scope of their license. The facility bears a standard license for fifty (50) beds on the 100, 200, 300 and 400 wings of the building, while the 500, 600 and 700 wings of the facility are independent and non-licensed. 10. An observation at 3:15 p.m. on February 7, 2012 during Resident number eleven’s (11) interview revealed the resident was wearing therapeutic hose on both legs up to the knees. Resident number eleven (11) stated he/she does not remember who puts them on and off. 11. Interviews were conducted in a group with three (3) facility direct care staff at 3:30 p.m. on February 7, 2012. Two (2) direct care staff stated they help Resident number eleven (11) put the hose over his/her heal when he/she either takes them off or on. One (1) staff stated she put the hose on and off for Resident number eleven (11) and the resident does not participate in this process. 12. A review of Resident number eleven’s (11) record documented on January 12, 2012 the doctor ordered "Knee high support stockings when out of bed." The reason for the doctor's visit was "Ankle - edema." The doctor's assessment on this visit documented, "Worsening of peripheral edema that I think is probably multifactorial from the combination of Verapamil, nutritional compromise during his/her illness, increase sodium intake associated with staying in the assisted living facility." 13. A review of the facility's Agency for Health Care Administration license shows this facility has a "Standard" license with no specialty license included. Assistance with oxygen and TED hose is allowed under a Limited Nursing License when provided by licensed nursing staff as ordered by a physician. The facility had neither the Limited Nursing Services license, nor the licensed nursing staff to do the service. 14. Observation at 8:15 am. on February 8, 2012 revealed once medications were passed by the unlicensed facility staff in the assisted living facility dining room the staff moved the cart to the independent dining room to assist the assisted living facility residents who prefer to eat in that room. Also observed was a second cart sitting in the 600 wing common area beside the independent dining room. An assisted living facility staff person was observed assisting independent residents with their medications. Once the staff person was observed to assist all waiting residents she was then observed checking the medication observation record. The staff person stated one (1) resident had not come for medications and moved the cart outside of room 702 (independent resident section of the building) and gathered the medications for that resident and went into room 702. When the staff person emerged from room 702 she verified the “independent” resident had taken the medications she provided. 15. When interviewed, the staff person verified she assisted the independent people with their medications, but was unsure of how many total independent residents she assisted. The staff person stated she had been doing this since she was a medication tech for this facility. 16. | Aninterview with the Corporate Nurse revealed fifteen (15) independent residents are assisted with medications from this cart. When asked if the facility had a "Clinic - a room(s) operated by a licensed nurse or physician’s assistant in which services allowed under the facility's license may be provided to non-facility residents from an independent but co-located building) the Corporate Nurse stated no we have no "Clinic." 17. An interview was conducted with the owner of the facility on February 8, 2012. When asked if the facility had a "Clinic" the owner stated, "No, we do not.” When told about the unlicensed activity of assisting with medications on the non-licensed portion of the building the owner stated, "Your people told me to do it that way. We have been doing it that way for a long time and many have seen it and not cited it. You cannot cite it now. We do it for the convenience of the residents." 18. The operation of an assisted living facility without appropriate licensure subjects the Respondent to a fine of one thousand dollars ($1,000.00) per day during any period of unlicensed activity. 19. The Respondent’s deficient practice constituted a Class II violation in that it related to the operation and maintenance of a provider or to the care of clients which the Agency determined directly threatened the physical or emotional health, safety, or security of the clients, other than a Class I violation. Section 429.19(2)(b), Florida Statutes (2011). 20. The Agency shall impose an administrative fine for a cited Class Il violation in an amount not less than one thousand dollars ($1,000.00) and not exceeding five thousand dollars ($5,000.00) for each violation as set forth in Section 429.19(2)(b), Florida Statutes (2011). A fine shall be levied notwithstanding the correction of the violation. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00) pursuant to Section 408.812(4) and (5) Florida Statutes (201 1). COUNT I (Assessment of Survey Fee) 21. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5) and the allegations in Count I. 22. The Agency, on or about February 7, 2012 through February 8, 2012, conducted a Complaint Survey (CCR# 2011013865) of the Respondent’s facility. 23. Asa result of the Agency’s Survey, the Respondent was cited with one (1) Class II deficiency. 24. Pursuant to Section 429.19(7), Florida Statutes (2011), the Agency is authorized to, in addition to any administrative fines imposed, assess a survey fee equal to the lesser of one- half of the facility’s biennial license and bed fee or five hundred dollars ($500.00), to cover the cost of conducting initial complaint investigations that result in a finding of a violation that was the subject of the complaint or monitoring visits conducted under Section 429.28(3)(c), Florida Statutes (2011), to verify the correction of the violations. 25. In this case, the Agency is authorized to seek a survey fee of FIVE HUNDRED DOLLARS ($500.00). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to assess a survey fee against the Respondent in the amount of FIVE HUNDRED DOLLARS ($500.00) pursuant to Section 429.19(7), Florida Statutes (2011). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the following relief: 1. Make findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00). 3. Assess a survey fee against the Respondent in the amount of FIVE HUNDRED DOLLARS ($500.00). 4. Order any other relief that the Court deems just and appropriate. Respectfully submitted on this LON™ day of Seg eon 2-€ 2012. QA AD mean ™. ral Andrea M. Lang, Assistant Genera[{Counsel Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 335-1253 NOTICE RESPONDENT IS NOTIFIED THAT IT/HE/SHE HAS A RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. THE RESPONDENT IS FURTHER NOTIFIED THAT IT/HE/SHE HAS THE RIGHT TO RETAIN AND BE REPRESENTED BY AN ATTORNEY IN THIS MATTER. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED ELECTION OF RIGHTS. ALL REQUESTS FOR HEARING SHALL BE MADE AND DELIVERED TO THE ATTENTION OF: THE AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, BLDG #3, MS #3, TALLAHASSEE, FLORIDA 32308; TELEPHONE (850) 412-3630. THE RESPONDENT IS FURTHER NOTIFIED THAT IF A REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF THE RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form were served to: Zia U. Butt, Registered Agent for North Port Retirement Center, Inc. d/b/a The Gardens of North Port, 4400 Harbor Boulevard, Port Charlotte, Florida 33953, by United States Certified Mail, Return Receipt No. 7011 2000 0001 4884 9140 and to Danny Robinson, Administrator, North Port Retirement Center, Inc. d/b/a The Gardens of North Port, 4900 South Sumter Boulevard, North Port, Florida 34287, by United States Certified Mail, Return Receipt No. 7011 2000 0001 4884 9133 on this LOW day of fe rember ; 2012. Qendatr. iN. 4 ad Andrea M. Lang, Assistant Generaf Counsel Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (239) 335-1253 8 Copies furnished to: Danny Robinson, Administrator North Port Retirement Center, Inc. d/b/a The Gardens of North Port 4900 South Sumter Boulevard North Port, Florida 34287 Andrea M. Lang, Assistant General Counsel Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (U.S. Certified Mail) (Interoffice Mail) Zia U. Butt, Registered Agent for Harold Williams North Port Retirement Center, Inc. Field Office Manager d/b/a The Gardens of North Port 4400 Harbor Boulevard Port Charlotte, Florida 33953 (U.S. Certified Mail) Agency for Health Care Administration 2295 Victoria Avenue, Room 340A Fort Myers, Florida 33901 (Interoffice Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. Case No. 2012005771 NORTH PORT RETIREMENT CENTER, INC. d/b/a THE GARDENS OF NORTH PORT, Respondents. ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be an Administrative Complaint, Notice of Intent to Impose a Late Fee, or Notice of Intent to Impose a Late Fine. Your Election of Rights must be returned by mail or by fax within twenty-one (21) days of the date you receive the attached Administrative Complaint, Notice of Intent to Impose a Late Fee, or Notice of Intent to Impose a Late Fine. If your Election of Rights with your elected Option is not received by AHCA within twenty-one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a Final Order will be issued. Please use this form unless you, your attorney or your representative prefer to reply in accordance with Chapter 120, Florida Statutes (2011) and Rule 28, Florida Administrative Code. PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: 850-412-3630 Fax: 850-921-0158 PLEASE SELECT ONLY | OF THESE 3 OPTIONS OPTION ONE (1) _____ I admit the allegations of fact and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. | understand that by giving up my right to a hearing, a Final Order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) _ I admit the allegations of fact and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) ___ I dispute the allegations of fact and law contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3) by itself is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A-statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes may be available in this matter if the Agency agrees. License Type: (Assisted Living Facility, Nursing Home, Medical Equipment, Other) Licensee Name: License Number: Contact Person: Name Title Address: Street and Number City State Zip Code Telephone No. Fax No. E-Mail (optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the above licensee. Signature: Date: Print Name: Title: STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, Vs. Case Nos. 12-3880 2012005771 NORTH PORT RETIREMENT CENTER, INC. d/b/a THE GARDENS OF NORTH PORT, Respondent. SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “A gency”), through its undersigned representatives, and Respondent, North Port Retirement Center, Inc. d/b/a The Gardens of North Port (hereinafter “Respondent”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Respondent is an assisted living facility licensed pursuant to Chapters 408, Part II, and 429, Part I, Florida Statutes (2011); Section 20.42, Florida Statutes (2011), and Chapter 58A-5, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Respondent, pursuant to Chapter 429, Part I, Florida Statutes (2011); and WHEREAS, the Agency served Respondent with an administrative complaint on or about September 10, 2012, notifying the Respondent of its intent to impose administrative fines EXHIBIT 2 in the amount of Two Thousand Five Hundred Dollars ($2,500.00) and a survey fee of Five Hundred Dollars ($500.00); and WHEREAS, Respondent requested a formal administrative proceeding by filing a Request for Formal Administrative Proceeding; and -WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Respondent agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, the Agency agrees to voluntarily dismiss the administrative complaint. in the amount of Two Thousand Dollars ($2,500.00) and a survey fee of Five Hundred Dollars ($500.00); and WHEREAS, Respondent requested a formal administrative proceeding by filing a Request for Formal Administrative Proceeding; and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Respondent agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, the Agency agrees to voluntarily dismiss the administrative complaint. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. Respondent acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Respondent’s Medicaid provider status, conditions, requirements or contract. 7. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 8. Each party shall bear its own costs and attorney’s fees. 9. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 10. Respondent for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement, by or on behalf of Respondent or related facilities. 11. | This Agreement is binding upon all parties herein and those identified in paragraph ten (10) of this Agreement. 12. In the event that Respondent was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 13. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Respondent has the capacity to execute this Agreement. Respondent understands that it has the right to consult with counsel and has knowingly and freely entered into this Agreement without exercising its right to consult with counsel. Respondent affirms that Respondent understands counsel for the Agency represents solely the Agency and Agency counsel has not provided legal advice to or influenced Respondent in its decision to enter into this Agreement. 14. This Agreement contains and incorporates the entire understandings and agreements of the parties. 15. This Agreement supersedes any prior oral or written agreements between the parties. 16. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 17. _ All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. 12/18/2012 16:29 19414232663 NORTH PORT PINES PAGE 02/02 42-17-'12 16:54 FROM-Ofc General Counsel 239-338-2699 7-396 P00@7/0007 F-643 y . North Port Retirement Conter, Inc. Agency for Health Care Administration d/b/a The Gardens of North Port 2727 Mahan Drive, Bldg #1 4950 Pocatella Avenue Tallahassee, Florida 32308 North Port, Florida 34287 paren: 246113 DATED: (Uf (kL Cu dere Jory Andrea M. Lang, Senior Attomey S F. Williams, General Counsel Agency for Health Care Administration Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 2295 Victoria Avenue, Room 346C Tallahassee, Florida 32308 Fort Myers, Florida 33901 DATED: «—- | 7%- [2 DATED: y LG ]13
