The Issue Whether Respondent committed violations of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner began working at Apalachee Correctional Institute (ACI) in 1993. ACI had about 1,600 to 1,800 inmates during times pertinent to this case. The inmates assigned to ACI are those found to be mentally disturbed. ACI is divided into the East Unit and the West Unit. Petitioner was hired as a Clerk Typist Specialist. She worked in the health services area performing typing and filing in the East Unit. In time Petitioner developed carpal tunnel syndrome. She had three surgeries, two of which involved her wrists. These medical problems prevented her from working a normal schedule and she had to expend her leave in order to cover her absences. Because of the problems with her wrists, she had, from time to time, difficulty typing without experiencing pain. Ann Lashley was employed in the West Unit. In 1995, she had a disagreement with her co-workers and, as a result, she was transferred to the East Unit. Subsequently, Petitioner was moved to the West Unit. Much of the work accomplished by the clerk-typists was related to transcribing psychiatrists' notes. The psychiatrists in the East Unit often typed their own notes. The psychiatrists in the West Unit did not. Therefore, there was more typing for the clerk-typists in the West Unit. Petitioner had difficulty keeping up with this additional typing. John Frank Williams was the overall supervisor of the East and West Units. He does not know, or in any event does not recall, why Petitioner was transferred. Petitioner filed a workers' compensation claim based on a date of accident of August 1, 1993. Petitioner's medical situation was coordinated with the Florida Division of Risk Management. A contract service, Compensation Rehabilitation Associates, was employed to audit Petitioner's work station and to determine what, if any, special equipment might assist Petitioner in accomplishing her employment duties without pain. A representative of Compensation Rehabilitation Associates opined that Petitioner required an ergonomically designed chair. Mr. Williams ordered one for her and Petitioner used it. Mr. Williams had work which had to be addressed. Nevertheless, he was aware of Petitioner's limitations and need to visit doctors and made diligent efforts to resolve the situation, including scheduling her work hours in a manner which would permit her to seek medical care. Petitioner related the following events which she contended constituted harassment: In 1994, when she first had problems with one of her wrists, she was told by Kenneth Swann to type with one hand. She was also told, at some time, by Dr. Cherry to type with one hand. She attended a meeting where Mr. Williams said, apparently in response to her continuing medical difficulties, that no one would want her. Joseph Thompson, at some point, told her she was not a team player. Dr. Loeb placed Petitioner at maximum medical improvement (MMI) on June 6, 1995 with no impairment or restrictions. Dr. Vogter placed the Petitioner at MMI on June 25, 1995, with an impairment rating of 17 percent, with restrictions of light duty and no continuous transcription work. Dr. Chason placed the Petitioner at MMI on April 7, 1998, with regard to psychological care, with a zero impairment rating. In a letter from Margaret Forehand dated August 12, 1996, a Personnel Technician II of ACI, Petitioner was informed that she was being placed on alternate duty. This letter outlined Petitioner's proposed work hours and took into consideration her need for reduced hours of typing and her need to visit her doctors. Petitioner, in response to this letter, declined to return to work. She had failed to report for work on August 15, 1996, and has been continuously absent since that date. Her sick leave was exhausted on October 4, 1996. Her Family Medical Leave Act benefits terminated on November 17, 1996. In a letter dated November 25, 1996, C. W. Sprouse, Superintendent of ACI, informed Petitioner that another position had been found for her and invited her to contact Ms. DeDe McMillian so that she could begin working. On or about December 10, 1996, Petitioner called Ms. McMillian and declined the offer. In a letter dated December 17, 1996, C.W. Sprouse informed Petitioner that a personnel action was being taken which could result in her dismissal. She was further informed that she was entitled to a predetermination conference. Petitioner did not request a predetermination conference and on January 3, 1997, her employment with ACI was terminated by Superintendent Sprouse. On May 26, 1998, a Judge of Compensation Claims entered an order adopting a stipulation between Petitioner, ACI, and the Florida Division of Risk Management whereby Petitioner received a lump sum of $50,000. The stipulation further recited that the stipulation resolved any and all issues regarding any aspect of the Petitioner's workers' compensation benefits.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition. DONE AND ENTERED this 13th day of September, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2001. COPIES FURNISHED: Gary Bullard, Qualified Representative 805 Shelby Avenue Alford, Florida 32420 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Prior to February 25, 1986, the Petitioner, Tommie Miller, was employed by the Respondent, the Department of Health and Rehabilitative Services (HRS) at the Brevard Regional Juvenile Detention Center as a detention child care worker I. During the time relevant to this case, June and July, 1987, Ms. Miller's supervisor was Michele McKinley, detention center superintendent. On February 25, 1986, Ms. Miller injured her lower back, injuring two nerves. The injury was job connected, and Ms. Miller was eligible for and received workers compensation benefits. Ms. Miller was receiving workers compensation benefits during the period relevant to this case, July 10 through 27, 1987. With the exception of a brief time during the period of June 22 through 24, 1987, Ms. Miller was absent from work from February 1986 through August 10, 1987, and thereafter, for that matter. On June 24, 1987, she reinjured her back at work. During the months she was out of work, Ms. Miller was treated in various rehabilitation programs. In June and July, 1987, she was receiving treatment from Woods Rehabilitation Services, Inc., and the rehabilitation nurse assigned to her case was Joan Patterson. R. Ex. 5. Ms. Miller lives 25 miles from the detention center, and testified that in June and July of 1987, her back hurt too much to allow her to drive to work at the detention center. Ms. Miller had exhausted her sick leave by July 22, 1987. It is inferred that she was on approved leave without pay by July 22, 1987. This inference is based on the fact that nearly a year and a half had elapsed from the date of the injury, and normal sick, annual, and compensatory leave would have been exhausted. This inference is also based upon the rules concerning the proper way to characterize the absence of an employee due to a job connected disability discussed in the conclusions of law. It is inferred that on July 22, 1987, the period of approved leave without pay was indefinite. This inference is based on the findings of fact which follow and the lack of evidence of a definite period of approved leave without pay. On June 22, 1987, Dr. Stanley Kaplan provided a written statement excusing Ms. Miller from work. On June 29, 1987, Ms. Miller was again seen by Dr. Kaplan for evaluation. Dr. Kaplan performed the normal therapy he was then performing for Ms. Miller, but did not tell her she could return to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on June 29, 1987. On July 17, 1987, Ms. Miller visited Dr. Stanley Kaplan for rehabilitative treatment. Dr. Kaplan did not tell Ms. Miller at that time that she could go back to work. This finding of fact is limited to what Ms. Miller in fact did not hear, and is not a finding concerning Dr. Kaplan's opinion on July 17, 1987. On July 22, 1987, Ms. McKinley wrote a certified letter to the Petitioner, Tommie Miller. R. Ex. I. The letter in its entirety stated: I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87. She further reported that you stated you didn't understand that you could return to work. In addition, we have had no further contact from you since 6/24/87. I am now going to have to require you to report back to work on 7/27/87, by 9:00 a.m. If you do not report back to work on this date or provide the appropriate medical documentation as to your absence, we will have to assume that you have abandoned your position with HRS. Thus, the letter of July 22, 1987, explicitly gave Ms. Miller two options: report to work at 9:00 a.m. on July 27, 1987, or "provide the appropriate medical documentation as to your absence." From the contents of the letter, it is concluded that when the letter was written, Ms. McKinley thought that Dr. Kaplan had released Ms. Miller to return to work on July 10, 1987. It is also concluded from the contents of the letter and from R. Ex. 5, which Ms. McKinley testified she had in her possession and was aware of when she wrote the July 22, 1987, letter, that Ms. McKinley was aware on July 22, 1987, that Ms. Patterson had said that Ms. Miller had said that she (Ms. Miller) did not understand that Dr. Kaplan had said she could return to work. On July 22, 1987, Ms. Miller was examined by Richard P. Newman, M.D. On July 24, 1987, Ms. Miller received the letter of July 22, 1987. As soon as she received the letter, Ms. Miller called Ms. McKinley on the telephone. Ms. Miller told Ms. McKinley that her current medical problem was an inability to drive to work, but that she could work if she was able to travel to work. Ms. McKinley told Ms. Miller that she had not received a written report from a physician concerning Ms. Miller's condition since June 24, 1987. Ms. McKinley told Ms. Miller that she (Ms. McKinley) still needed medical documentation, and that she could not authorize leave based on her oral report without medical documentation. Ms. Miller then told Ms. McKinley that Ms. Patterson at the Woods Rehabilitation Services was supposed to send the doctor's report to Ms. McKinley. During the telephone call, Ms. McKinley did not ask her (Ms. Miller) to personally deliver the doctor's report, and did not tell Ms. Miller that reliance upon Ms. Patterson was inappropriate. Moreover, Ms. McKinley did not warn Ms. Miller that if Ms. Patterson fi1ed to deliver the report by July 27, 1987, that Ms. Miller would automatically forfeit her job. At the time of the phone call from Ms. Miller, Ms. McKinley was in possession of R. Ex. 5. The top of page two of that document advised Ms. McKinley that Ms. Miller was scheduled for an evaluation by Dr. Newman on July 22, 1987. In the fourth paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Ms. Miller would attend the appointment with Dr. Newman. In the seventh paragraph of page two of R. Ex. 5, Ms. McKinley was advised that Nurse Patterson felt that Dr. Newman's evaluation was important to an assessment of the current status of Ms. Miller's medical condition. These findings are based upon what is in fact stated in R. Ex. 5 and known to Ms. McKinley as what Ms. Patterson had written. No finding is made as to whether what is stated in R. Ex. 5 is true. It is concluded that during the telephone conversation with Ms. Miller on July 24, 1987, Ms. McKinley knew that Ms. Miller was to have been evaluated by Dr. Newman on July 22, 1987. At the time of the phone call on June 24, 1987, Ms. McKinley did not ask Ms. Miller to tell her what Dr. Newman had determined concerning Ms. Miller's medical condition, and did not ask Ms. Miller about Dr. Newman's evaluation two days earlier. As a result, during the July 24, 1987, telephone conversation, inexplicably neither Ms. McKinley nor Ms. Miller mentioned anything about Dr. Newman's evaluation on July 22, 1987. R. Ex. 2A is the report of Dr. Newman with respect to the visit of July 22, 1987. The report indicates on its face that Woods Rehab Services and Ms. Tommie Miller are listed as recipients of the "cc." The report of Dr. Newman of July 22, 1987, R. Ex. 2A, states in part: At this time, my feeling would be that the drive to and from Titusville is causing her more harm than good. Since she works for the state, it would be in the best interest of all parties concerned to move her to a position in the Rockledge area because she will be able to commute a very short drive and would be quite capable of performing this type of sedentary work. On July 24, 1987, Ms. Miller called Dr. Newman to get another written report, and asked Dr. Newman to send that report to Ms. Patterson at Woods Rehabilitation Center. R. Ex. 2B is that report. The report of July 24, 1987, shows that Woods Rehabilitation Services, Inc., but not Ms. Miller, was the recipient of a "cc." The report of July 24, 1987, R. Ex. 2A states in part: It is not the act of driving itself, but it is the riding in the car that is bothering her back and I do not think that she should be having to travel by car 25 miles in either direction to work when she could be doing a similar job virtually around the corner from her house. It is concluded that the report of Dr. Newman, in written form, supported Ms. Miller's oral statement to Ms. McKinley that she was physically unable to drive to the detention center due to the distance. These findings of fact are based upon what in fact is printed on the face of the reports, and is not a finding that the statements contained in the reports are true. Ms. Patterson told Ms. Miller that she would send the report to Ms. McKinley. Ms. Patterson told Ms. Miller that she did communicate with HRS. No finding is made as to the truth of Ms. Patterson's statement, but only that Ms. Miller in fact heard Ms. Patterson make this statement to her. Ms. Miller thought Ms. Patterson would and did send the medical report of July 22, 1987, to Ms. McKinley. Ms. Patterson did not send Dr. Newman's medical report to Ms. McKinley. There was a prior pattern of dealing between the parties such that Ms. Patterson, with reasonable frequency, though not routinely, communicated to Ms. McKinley concerning the current medical status of Ms. Miller with respect to her ability to resume her job with HRS. This finding of fact is based upon the testimony of Ms. Miller, who stated that she relied upon Ms. Patterson to keep Ms. McKinley informed, and the testimony of Ms. Miller that on July 24, 1987, she told Ms. McKinley by telephone that Ms. Patterson would send the medical documentation. It is also based upon the testimony of Ms. McKinley, who testified that Ms. Patterson did, from time to time discuss with her Ms. Miller's medical condition and job alternatives. But most important, this finding is based on the letter of July 22, 1987, itself. The first sentence of that letter stated: "I've been informed by Ms. Patterson of Woods rehabilitation that Dr. Kaplan released you to return to work as of 7/10/87." It is noted that R. Ex. 5, which Ms. McKinley testified was the only information she had on July 22, 1987, was an extensive report prepared by Nurse Patterson, and shows Michele McKinley in the "cc" list, from which it is inferred that Ms. Patterson routinely sent these medical evaluations to Ms. McKinley. In the year between August, 1986, and July, 1987, there is no evidence that Ms. Miller had failed to provide HRS with medical documentation concerning her injury as may have been required by HRS, or that HRS had not been satisfied with the reports received from Nurse Patterson and her predecessors. In particular, there is no evidence that during this twelve month period HRS had discussed with Ms. Miller any problem of receipt of medical documentation, or had occasion to warn her that it was her personal responsibility to provide medical documentation, and that her failure to do so would result in loss of her job. Such a warning, it is inferred, would have been appropriate if Nurse Patterson had failed to send medical documentation that had been previously demanded by HRS. In short, during the period from July, 1986, to July, 1987, it must be concluded that whatever system of medical documentation was then required by HRS, if any, was complied with satisfactorily. On July 28, 1986, Ms. Miller was warned by her supervisor that she had a personal responsibility to keep HRS informed concerning her medical condition. The warning on this date was prompted by the fact that HRS was then not receiving medical documentation that it needed. The relevance of this warning with respect to the period of June and July, 1987, is diminished for several reasons. First, this warning occurred a year before, and there is no evidence of any failure in the intervening 12 months by Ms. Miller to satisfy HRS's needs for medical documentation. Further, the July, 1986, incident occurred because Ms. Miller then did not have a rehabilitation nurse assigned to her case, and thus had no medical representative to send medical information to HRS for her. But more important, as discussed in the preceding paragraph, when Nurse Patterson and her predecessors were assigned to Ms. Miller, Ms. Miller relied upon them to send medical information. The system apparently worked, since there is no evidence of a dissatisfaction by HRS with medical documentation after July, 1986, until the letter of July 22, 1987. The medical documentation was still not received by Ms. McKinley on August 10, 1987. Ms. Miller did not report to work in the period from July 22, 1987, to August 10, 1987. On August 10, 1987, HRS by letter notified Ms. Miller that HRS concluded that Ms. Miller had abandoned her position. Ms. Miller did not learn that Ms. McKinley had not received the medical documentation until she received the letter of August 10, 1987. On August 18, 1987, Ms. Miller requested a formal administrative hearing concerning the conclusion that she had abandoned her position.
Recommendation It is therefore recommended that the Department of Administration enter its final order finding that the Petitioner, Tommie Miller, did not abandon her position with the Department of Health and Rehabilitative Services by being absent from her job for three consecutive workdays without authorized leave. DONE and RECOMMENDED this 17th day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1988. APPENDIX To Recommended Order in Case No. 87-4136 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used designate the unnumbered paragraphs used by the Petitioner, in sequence. Findings of fact proposed by the Petitioner: Fourth sentence, there is no transcript, and the Hearing Officer's notes do not record the testimony that the medical excuse "indicated that the estimated Date of Return to Duty as unknown." The Hearing Officer has no independent memory of such testimony sufficient to conclude that this proposed finding of fact is true. The same is true with respect to the sentence: "Ms. Miller advised McKinley that she had been to see Dr. Richard P. Newman, M.D. on July 22, 1987." If the record reflected that Ms. Miller so testified, the Hearing Officer would make this finding of fact, since there was no reason to disbelieve Ms. Miller's testimony, and Ms. McKinley testified that she could not remember. Ms. Miller's testimony, as well as Ms. McKinley's testimony, appeared to be honest and straightforward, testifying to the truth both remembered at the time of testifying. The last sentence is not relevant. The first and third sentences are rejected since no one from Woods Rehabilitation Services testified. There is no evidence in the record that Ms. Patterson in writing told Ms. Miller that she advised Ms. McKinley of Ms. Miller's continued disability, and thus that portion of the sixth sentence is rejected. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Linoria Anthony AFSCME Council 79 345 South Magnolia Drive Suite F-21 Tallahassee, Florida 32301 James A. Sawyer, Jr., Esquire District VII Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 =================================================================
The Issue In Case No. 99-2748, should Elvira Demdam, d/b/a San Juan Retirement Home, be administratively fined for operating an unlicensed facility, and if so, in what amount? In Case No. 99-2755, should Elvira Demdam, d/b/a Ingleside Retirement Home, be administratively fined for exceeding the home's licensed capacity, and if so, in what amount?
Findings Of Fact AHCA is the state agency responsible for licensing and regulation of ALFs in Florida. Respondent, Elvira Demdam, operates both Ingleside Retirement Home and San Juan Retirement Home in Jacksonville, Florida. Gloria Wolfe is employed by AHCA to inspect ALFs for compliance with state and federal regulations for such facilities. Elvira Demdam is the licensee for Ingleside Retirement Home. The effective date of the license for Ingleside was October 27, 1997. Its expiration date was October 26, 1999. On April 26, 1999, Ms. Wolfe surveyed a facility doing business as San Juan Retirement Home due to a complaint that San Juan was operating as an unlicensed ALF. During Ms. Wolfe's inspection, San Juan Retirement Home had four residents, all of whom were being provided personal services by the home, including assistance with meals, administration of medications, and assistance with other essential activities of daily living. Therefore, the San Juan facility was being operated as an ALF on April 26, 1999. In a letter dated April 27, 1999, AHCA imposed a moratorium on admissions, effective April 26, 1999, on Ingleside Retirement Home, because Ms. Demdam had an interest in Ingleside Retirement Home and an interest in San Juan Retirement Home, which was operating without a license. The moratorium for Ingleside was to remain in force until the unlicensed facility (San Juan) ceased operation, and no residents could be readmitted without approval of AHCA. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's report and because he believed that previous sanctions had been recommended against the Ingleside Retirement Home within the licensure period for the same type of deficiency. However, at hearing, he did not specify any previous sanctions against Ingleside, similar or otherwise. Elvira Demdam is the licensed administrator of Ingleside Retirement Home and should have known of the legal requirement that San Juan Retirement Home be licensed. Indeed, by her own admission, Ms. Demdam had been a nursing home administrator for four years, knew of the licensure requirement, and had been attempting to license the San Juan facility since at least 60 days before the property was transferred to her. San Juan was licensed to another person at the time Ms. Demdam took it over. That prior license had expired in December 1998, and Ms. Demdam did not get San Juan Retirement Home licensed in her name until July 1999. Ms. Demdam's exhibits support her testimony that much of her license application paperwork for San Juan Retirement Home was lost in the mail or within AHCA and that ACHA repeatedly required that she re-submit the same documents. However, she did not establish that the Agency failed to grant or deny her application within 90 days of submission of all necessary application items. The fact remains that on April 26, 1999, Ms. Demdam was operating San Juan Retirement Home without a valid ALF license. Although Ms. Demdam asserted that one or more of the San Juan residents were non-blood relatives who had lived with her as family members since 1995, she offered no corroborative evidence on this issue, and this assertion is not found to be credible. Ms. Wolfe also participated in a May 4, 1999, monitoring visit and survey of Ingleside Retirement Home. At that time, she found Ingleside to be operating in excess of its licensed capacity. Ingleside Retirement Home is licensed for 18 residents, but in fact, had 19 residents on that date. Ms. Wolfe personally reviewed residents, room by room, and made a census of Ingleside Retirement Home on May 4, 1999. Her census shows that a nineteenth resident, S.W., had been admitted to Ingleside in March 1999. Ms. Wolfe's investigation revealed that this resident was not noted in Ingleside's admissions/discharge log. Despite arguments that this deficiency constituted a Class III violation, an A-004 "not classified" deficiency was actually issued. (See ACHA Exhibit 4, page 3) Ms. Demdam's explanation for the extra resident in Ingleside Retirement Home was that she had taken in S.W. at the request of a case worker for the Department of Children and Family Services (DCF) as an emergency placement on a weekend for a projected stay of only two to four weeks but that due to unforeseen circumstances, DCF had not removed S.W. timely. It is unclear from this record whether the patient, S.W., put the census of Ingleside over 18 patients in March, the time that she was first taken in. It is also unclear exactly how long S.W. caused Ingleside's census to exceed the 18 patients provided for on its license, but as of May 1999, Ms. Demdam was providing care for S.W. and another Ingleside resident, J.J., without pay. Mr. Dickson testified that he recommended a $1000.00 fine as a sanction for having the one extra resident in Ingleside Retirement Home on May 4, 1999, because of prior sanctions recommended within the licensure period for the same type of deficiency. However, the only similar deficiency or sanction he noted during his testimony was the Ingleside moratorium which had been based upon the lack of licensure of the San Juan facility. By a letter dated May 7, 1999, AHCA notified the Respondent of the findings supporting the imposition of a moratorium at Ingleside. Ms. Demdam testified credibly that she moved S.W. out of Ingleside Retirement Home as soon as she was notified and that she cleared-out the four residents of San Juan Retirement Home as soon as possible. Mr. Dickson views both ALF citations very seriously because operating an ALF without a license can be prosecuted by the State Attorney as a third-degree felony (see Section 400.408(1)(b)-(c), Florida Statues, (Supp. 1998) and because he views Ms. Demdam's long practice and licensure in the ALF field to demonstrate her knowing and willful disregard of the law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding Respondent guilty of operating an unlicensed facility and imposing an administrative fine in the amount of $1,000 in DOAH Case No. 99-2748; and That the Agency for Health Care Administration enter a final order finding Respondent guilty of exceeding her licensed capacity at Ingleside Retirement Home, and imposing an administrative fine in the amount of $500.00 in DOAH Case No. 99-2755. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3408D Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elvira Demdam, Administrator San Juan Retirement Home Un-Licensed 6561 San Juan Avenue Jacksonville, Florida 32210 Elvira Demdam, Administrator Ingelside Retirement Home 732 Camp Milton Lane Jacksonville, Florida 32220 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue This is a case in which the Petitioner seeks a determination that a policy of the Respondent is a rule, and that such policy/rule is invalid because it has not been adopted pursuant to the procedures set forth at Section 120.54, Florida Statutes. The challenged rule was described in the petition as a policy to the effect that . . . a man's middle name can be changed to his wife's maiden name on his driver's license only by court order and not by presenting a copy of his marriage certificate. However, a female may add her husband's name on her driver's license as a surname by presenting a copy of her marriage certificate. . . . At hearing it was clarified that the policy to which the challenge is directed is the policy set forth in the last paragraph of page 7-3 of the Florida Examiner's Manual. At the hearing both parties presented testimony and offered exhibits which were received in evidence. The parties were originally allowed until December 17, 1988, within which to file their proposed final orders. At the request of the parties that deadline was extended until December 22, 1988. Both parties filed proposed final orders containing proposed findings of fact and conclusions of law. All findings proposed by the parties are specifically addressed in the appendix to this final order.
Findings Of Fact Based on the evidence received at the hearing in this case, I make the following findings of fact. Petitioner's birth name, which name he used until the time of his marriage, was Joseph Charles Sexton. On August 8, 1988, Petitioner was married to Beth-Anne (NMN) Thye. Since the marriage, the Petitioner has used the name Joseph Thye Sexton and his wife has used the name Beth-Anne Thye Sexton. The marriage certificate of the Petitioner and his wife does not state what name either of them intends to use after the marriage. Following the marriage, Petitioner's wife was permitted to change her name on her driver license from Beth-Anne Thye to Beth-Anne Thye Sexton, using only her marriage certificate. Following the marriage, Petitioner' attempted to change the name on his driver license from. Joseph Charles Sexton to Joseph Thye Sexton, using only his marriage certificate, but was told by employees of the Respondent that he would need a court order to make such a change. The Respondent has published a manual with the title Florida Examiner's Manual. The manual has been distributed by the Respondent and is used by the Respondent's employees in the fulfillment of their duties related to the issuance of driver licenses. The manual contains the current policies of the Respondent. The portions of the manual quoted hereinafter have not been adopted as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statues. The Florida Examiner's Manual, at page 7-7, under the subheading Applicant With Name Established On Florida Computer Record, reads as follows: Name changes can be proven by the following documentation: Females: *Marriage certificate, *Court order, *Out-of-state license, *Naturalization papers, *Divorce decree (Dissolution of marriage), *Names already established on record, or --May go back to previous last name, such as a maiden name, without Court Order, etc., if name is already on record. *Two forms of identification in the same name as listed on page 7-1. M *Naturalization paper, *Court Order, or *Two forms of identification in the came name as listed on page 7-1. Page 7-3 of the Florida Examiner's Manual, under the subheading Hyphenated Names, includes the 2. Hyphenated first, second, and/or last names can be used. *Maiden-married or married-maiden names of female applicants can be hyphenated at the request of the female applicant without court order. Identification proving maiden and married names must be presented. *Male applicants may not assume the maiden name of their spouses or use a hyphenated combination of the husband's last name and the wife's maiden name unless authorized by Court Order (pursuant to a May 7, 1984 Departmental legal opinion.) The Respondent's rationale for the policies quoted in paragraphs 5 and 6, above, is that it is "customary" for a woman to take her husband's surname upon marriage, but it is not "customary" for a man to take his wife's maiden name upon marriage. Those policies promote administrative convenience, because they are consistent with established custom. It is very important for the Respondent to establish and maintain accurate information as to the identity of its licensees, in order to protect the business community, law enforcement officers, the motoring public and the public at large. To this end the Respondent operates an extensive fraud prevention program. If a male driver changes his name and is issued a new driver license in his new name, the Respondent does not lose track of that driver's prior driver record. Rather, an inquiry under the new name will also access information under the prior name.
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth- Related Neurological Injury Compensation Association ve Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of national origin,1 in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2005).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Neiman Marcus Group, Inc., owns and operates specialty retail stores. Its headquarters are located in Dallas, Texas. In the summer of 2005, Neiman Marcus began hiring personnel to work in a new store that would open in the fall of 2005 in the Town Centre mall in Boca Raton, Florida. Ms. Jean-Pierre is a permanent resident alien in the United States. She was born in Haiti in 1970 and entered the United States in 1983. In September 2005, Ms. Jean-Pierre was employed as a sales associate in the accessories section of the Nordstrom department store in the Town Centre mall when she was approached by two women who inquired about Chanel sunglasses. They requested her business card and later called to tell her that they were very impressed with her sales skills. They asked if she was interested in working as a sales associate at the new Neiman Marcus store. Ms. Jean-Pierre applied for a position with Neiman Marcus, went through an interview and a drug test, and was hired to begin work on October 24, 2004. Hurricane Wilma hit South Florida on October 24, 2005, and the Neiman Marcus employees were not able to go to the hiring site during the week following the hurricane. As a result, the newly-hired employees who were to begin work on October 24, 2005, including Ms. Jean-Pierre, were told to report to work on November 1, 2005. Ms. Jean-Pierre's group of newly-hired employees joined the group of newly-hired employees that were to report to work on October 31, 2005. Because there were a large number of people, they were split in two groups. Ms. Jean-Pierre's group went to the store site to begin training on the first day they reported for work, while the other group reported to the hiring center to receive training and to complete the paperwork required of newly-hired employees. Ms. Jean-Pierre's group went to the hiring center on November 3, 2005, for training and to complete their paperwork. All newly-hired employees of Neiman Marcus are required to complete an Immigration and Naturalization Service Employment Eligibility Verification form, known as the "I-9 Form." The I-9 Form consists of three pages. The first page is divided into three sections, two of which must be completed for newly- hired employees. The second page consists of the instructions for completing the I-9 Form, and these instructions "must be available during completion of this form." The third page is headed "Lists of Acceptable Documents" and consists of List A, List B, and List C. Section 1 on the front of the I-9 Form, Employee Information and Verification, must be completed and signed by the employee. The employee must include his or her name, address, maiden name (if applicable), date of birth, social security number, and an attestation, given "under penalty of perjury," that the employee is either a "citizen or national" of the United States, a "Lawful Permanent Resident," or an "Alien authorized to work" in the United States. Section 2 of the I-9 Form, Employer Review and Verification, must be completed and signed by the employer. The employer is required to examine one document from List A ("Documents that Establish Both Identity and Employment Eligibility"), or one document from List B ("Documents that Establish Identity") and one document from List C ("Documents that Establish Employment Eligibility"). The document or documents provided by the employee must be listed in Section 2, and the employer or a representative of the employer must sign the form, attesting, "under penalty of perjury," that he or she has "examined the document(s) presented by the above-named employee, that the above listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment of (month/day/year) and that to the best of my knowledge the employee is eligible to work in the United States." The "Instructions" sheet that must be available during completion of the I-9 Form directs the employee to complete Section 1 of the form "at the time of hire, which is the actual beginning of employment." The instructions direct the employer, in pertinent part, to complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days. . . . Employers must record document title; 2) issuing authority; 3) document number; 4) expiration date, if any; and 5) the date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the I-9. (Emphasis in original.) When newly-hired employees report to the hiring site for training, they are placed at a computer to type in the information required in Section 1 of the I-9 Form. It is Neiman Marcus's policy to provide all newly-hired employees, at the time they are completing Section 1 at the computer, a copy of the page setting forth the "Lists of Acceptable Documents," with a copy of the "Instructions" page stapled to that document. When the information required in Section 1 is complete, the I- 9 Form prints out of the computer with the employee's information included. The employee signs the form, and the Neiman Marcus representative examines the documents presented by the employee and completes and signs Section 2 of the I-9 Form. Neiman Marcus requires all newly-hired employees to present original documents from List A or List B and List C for verification within 72 hours of the beginning of employment. If an employee fails to provide the necessary original documents or a receipt for the application of the documents within the 72- hour timeframe, it is Neiman Marcus's policy to suspend the employee's employment with Neiman Marcus and to allow them a week to provide documents required for identification and employment verification. If the newly-hired employee is unable to produce the necessary documents, the employee is terminated, but the employee is advised that they are welcome to re-apply for a job when they are able to produce the original documents that satisfy the requirements on the I-9 Form. It is not Neiman Marcus's policy to specify the documents a newly-hired employee must present to verify his or her identity and employment eligibility. Rather, Human Resource Managers at the various Neiman Marcus stores have been told not to specify any document that must be produced to satisfy the identification and employment verification requirements on the I-9 Form. Donna Bennett is, and was at the times pertinent to this proceeding, the Human Resource Manager for the Neiman Marcus store in Boca Raton. Amy Wertz was the Human Resources Coordinator and worked for Ms. Bennett at the times pertinent to this proceeding. When Ms. Jean-Pierre reported to the hiring center on November 3, 2005, she completed Section 1 of the I-9 Form on the computer provided by Neiman Marcus and, to verify her identity, presented her Florida driver's license to Ms. Wertz, who was the Neiman Marcus representative verifying employment eligibility for the newly-hired Neiman Marcus employees in Ms. Jean-Pierre's group. Ms. Jean-Pierre advised Ms. Wertz that her "Green Card"3 and her Social Security card had been in her car, which was stolen from the parking lot of her condominium building after the Hurricane Wilma. Ms. Jean-Pierre did not provide Ms. Wertz an original document from either List A or List C to verify her employment eligibility on November 3, 2005. She did give Ms. Wertz her Social Security number and a copy of her Permanent Resident Card, income tax return, and pay stub from her previous employment. Ms. Wertz would not accept these documents for purposes of satisfying the I-9 Form requirement of verification of employment eligibility. On November 3, 2005, Ms. Wertz advised Ms. Bennett that Ms. Jean-Pierre had failed to produce the original document from List A or List C required to verify her employment eligibility. Ms. Bennett directed Ms. Wertz to send Ms. Jean- Pierre home to look for an original document that would satisfy the requirements for establishing her employment eligibility. Ms. Jean-Pierre reported for work on November 4, 2005, without an original document from List A or List C. Ms. Bennett went to the official website of the United States Citizenship and Immigration Services to verify the government policy on the production of documentation to establish employment eligibility. After reviewing the information on the website, Ms. Bennett advised Ms. Jean-Pierre that, if she produced a receipt showing she had applied for a replacement document among those on List A or List C, she could have an additional 90 days in which to produce the original document. Ms. Bennett did not contact Neiman Marcus's corporate legal department with regard to this information before she passed it on to Ms. Jean-Pierre. On November 5, 2005, Ms. Jean-Pierre provided either Ms. Wertz or Ms. Bennett a document printed from the United States Citizenship and Immigration Services website entitled "I-90 Form: Application to Replace Permanent Resident Card" and told them that she had an appointment with the Immigration and Naturalization Service at the end of November 2005.4 Ms. Bennett believed that this document was an acceptable receipt for an application for a replacement document, and she advised Ms. Jean-Pierre that she had 90 days from November 5, 2005, in which to produce the original document. A notation was made on the I-90 Form that "[y]ou have 90 days from today." Ms. Bennett did not consult with anyone at Neiman Marcus corporate headquarters regarding the sufficiency of the document provided by Ms. Jean-Pierre or receive authorization to allow Ms. Jean-Pierre an additional 90 days in which to produce the original document. In late November 2005, Ms. Wertz told Ms. Bennett that Ms. Jean-Pierre had missed her appointment with the Immigration and Naturalization Service because of a death in her family. Ms. Bennett became concerned that Ms. Jean-Pierre did not take seriously the requirement that she provide original documents to establish her employment eligibility within the 90-day grace period, which, according to Ms. Bennett's understanding, began to run on November 5, 2005. Ms. Bennett called Ms. Jean-Pierre into her office and spoke with her about the importance of providing the necessary original documentation. Ms. Jean-Pierre told her that she would take care of the matter. On or about December 15, 2005, Ms. Jean-Pierre produced to Ms. Bennett a document identified as a Citizens and Immigration Services form I-797C, Notice of Action. The "Case Type" specified on the document was "I-90 Application to Replace Alien Registration Card"; the "Receipt Number" noted on the document was "MSC-06-800-46861" the date on which the application was received was noted as December 14, 2005; the applicant was identified as "A37 888 854 Jean-Pierre, Nita"; and the "Notice Type" specified on the document was "Receipt Notice." When she gave Ms. Bennett this document, Ms. Jean- Pierre told Ms. Bennett that it would take between six months and one year to receive the replacement card because of September 11, 2001. Ms. Bennett became concerned that Ms. Jean- Pierre would not be able to provide the required original document within the 90-day grace period. At this time, she contacted Susan Moye, a manager in Associate Relations at Neiman Marcus's corporate headquarters in Dallas, Texas, and arranged to have the I-797C form faxed to Ms. Moye. Ms. Moye consulted with Neiman Marcus's legal department about the sufficiency of the I-797C Form Ms. Jean- Pierre had provided on December 15, 2005. Ms. Moye was advised that this document was not sufficient to meet the I-9 Form requirement that the employer examine the original of one of the documents included on List A or List C to verify employment eligibility. Ms. Bennett was absent from work for a period of time due to the illness and death of her father. During her absence, Ms. Wertz was in communication with Ms. Moye regarding Ms. Jean- Pierre's employment status. Ms. Moye directed Ms. Wertz to notify Ms. Jean-Pierre that the I-797C form she had provided was not sufficient to verify her employment eligibility and that she was suspended from employment for one week to give her the opportunity to obtain an acceptable original document. Ms. Jean-Pierre did not provide the required documentation by the end of the one-week period of her suspension. Ms. Bennett returned to work on December 27, 2005. Ms. Bennett spoke with Ms. Moye about the matter on December 27, 2005, and Ms. Moye told her that Ms. Jean-Pierre needed to provide an original document in order to establish her eligibility for employment and that the document Ms. Jean-Pierre had provided on December 15, 2005, was not an acceptable original document. Ms. Moye advised Ms. Bennett that she would need to terminate Ms. Jean-Pierre. At the time she directed Ms. Bennett to terminate Ms. Jean-Pierre, Ms. Moye was not aware of Ms. Jean-Pierre's race or national origin.5 Ms. Bennett called Ms. Jean-Pierre into her office and explained to her that it was Neiman Marcus's policy to require original documentation of identification and employment eligibility within three days of beginning employment; that the document she provided on December 15, 2005, was unacceptable; and that she was terminated. During this meeting, Ms. Jean-Pierre argued that the document she had provided on December 15, 2005, was acceptable. Ms. Bennett explained to Ms. Jean-Pierre that, in accordance with Neiman Marcus's policy, she needed to produce the original document, not the receipt for an application for a replacement document. When she terminated Ms. Jean-Pierre, Ms. Bennett told her that she was welcome to re-apply for a job when she was able to produce the appropriate documents to establish her employment eligibility. Ms. Bennett did not tell Ms. Jean-Pierre that a "Green Card" was the only acceptable document to establish her employment eligibility. Nor did she tell Ms. Jean-Pierre that she needed to provide more documentation than others because she was Haitian. In January 2006, Ms. Jean-Pierre returned to the Neiman Marcus Boca Raton store and provided Ms. Bennett with a receipt showing that she had applied for a Social Security card on January 10, 2006. Ms. Bennett faxed this document to Ms. Moye, who responded that the receipt was insufficient and that Ms. Jean-Pierre needed to produce an original document. On January 5, 2006, Ms. Jean-Pierre obtained a stamp on her passport indicating that employment was authorized for her, which authorization would expire on January 4, 2007. Ms. Jean-Pierre received her replacement Social Security card on January 16, 2006. Ms. Jean-Pierre did not present an original Social Security card to Neiman Marcus or her stamped passport to Neiman Marcus as verification of her employment eligibility. Ms. Bennett has previously terminated newly-hired employees who failed to timely provide the documents required to establish employment eligibility. Those employees were invited to re-apply when they received their original documents. Several re-applied, provided their original documents, and were re-hired. Of the more than 59 newly-hired employees reporting to work on or about November 1, 2005, Ms. Jean-Pierre was the only employee who failed to produce to Neiman Marcus the required original documentation verifying her employment eligibility. Summary The direct evidence presented by Ms. Jean-Pierre is not sufficient to establish that Neiman Marcus discriminated against her on the basis of her national origin. Ms. Wertz and Ms. Bennett were aware that Ms. Jean-Pierre was from Haiti residing in the United States, but the evidence establishes that both Ms. Wertz and Ms. Bennett were concerned about her failure to produce any original documents as required for verification of employment eligibility and that Ms. Bennett talked to her about the seriousness of the issue and urged her to get the necessary document. Ms. Jean-Pierre's testimony that Ms. Bennett told her she needed more documentation because she was a Haitian is unsupported by any other testimony or documentary evidence. Finally, Ms. Moye, the person who directed Ms. Bennett to terminate Ms. Jean-Pierre, was not aware that she was born in Haiti. Ms. Jean-Pierre's testimony that both Ms. Wertz and Ms. Bennett insisted she must provide a "Green Card" to verify her permanent residence is, likewise, unsupported by any other testimony or documentary evidence. In any event, this evidence would not, of itself, establish that either Ms. Wertz or Ms. Bennett was motivated by the intent to discriminate against Ms. Jean-Pierre because she is Haitian. The evidence presented is sufficient, however, to support an inference that Ms. Jean- Pierre misunderstood the information she received from Ms. Wertz and Ms. Bennett and assumed that they were referring to an original Permanent Resident Card rather than an original document included on the "Lists of Acceptable Documents."6 Ms. Jean-Pierre acknowledged in her testimony that, when Ms. Wertz told her she needed to verify her permanent residence, she interpreted this to mean that she needed to get a replacement copy of her Permanent Resident Card. Similarly, Ms. Jean-Pierre may have interpreted Ms. Bennett's statements that she needed to produce an original document as requiring that she produce a Permanent Resident Card. The evidence presented by Ms. Jean-Pierre is sufficient to establish that Ms. Jean-Pierre is entitled to protection from employment discrimination on the basis of her national origin; that she was qualified for the position of sales associate with Neiman Marcus; and that she was subjected to an adverse employment action because she was terminated from her employment. Ms. Jean-Pierre stated unequivocally in her testimony, however, that she did not know of any other person who failed to verify their employment eligibility that was allowed to work at Neiman Marcus. She has, therefore, failed to establish a prima facie case of employment discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Nita Jean-Pierre on September 20, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 29th day of February, 2008.
The Issue The issue presented is whether Petitioner’s application for renewal of its assisted living facility (ALF) license, located in Tampa, Florida, should be approved or denied.
Findings Of Fact AHCA is the state agency charged with the licensure and regulatory oversight of ALFs, pursuant to chapters 408, part II, and 429, Florida Statutes; and Florida Administrative Code Chapters 59A-35 and 58A-5. Hailes is licensed by AHCA as “Adrianne Wilson d/b/a Hailes Board Home,” licensed number 5776. Hailes is an ALF, located at 1009 N. Willow Avenue, Tampa, Florida. Hailes started as a business in 1980 and has been operational since then. There are 12 residents who live at Hailes, many of whom have been residents for multiple years. Hailes operates as an extended family and members of the Hailes family live and work on the premises. The hearing testimony confirmed, and the most recent certificate evidencing the license at issue in this case provided, in pertinent part the following: LICENSE #:AL5776 CERTIFICATE #: 48175 State of Florida Agency for Health Care Administration Division of Health Quality Assurance ASSISTED LIVING FACILITY with LIMITED MENTAL HEALTH STANDARD This is to confirm that ADRIANNE WILSON has complied with Chapter 429, Part I, laws of the State of Florida and with 58A-5, rules of the State of Florida and is authorized to operate the following: HAILES BOARDING HOME 1009 N Willow Ave Tampa, FL 33607-5549 HILLSBOROUGH COUNTY TOTAL CAPACITY: 12 Optional State Supplementation Residents: 11 Private Pay Residents: 1 EFFECTIVE DATE: 02/22/2014 EXPIRATION DATE: 02/21/2016 Renewal Application Florida ALF licenses must be renewed every two years. Hailes’ license had been successfully renewed since it was first issued. An issue with Hailes’ 2014 renewal application was not resolved until September 12, 2016.3/ As the 2014 renewal application was winding its way through AHCA’s system, Adrianne Wilson became ill in 2015. Her sister, Andrea Jones, became Hailes’ administrator. Prior to becoming Hailes’ administrator, Ms. Jones worked with the Hailes’ residents in the recreation department, prepared meals for everyone, and scheduled appointments for Hailes’ residents. After she became the administrator, Ms. Jones helped to fill out some of the licensing applications. On February 22, 2016, Hailes filed a purported “renewal application” which listed the name of the ALF as “Hailes Assisted Living Facility, Inc” located at “1009 N Willow Ave Tampa, Hillsborough FL 33607.” This application provided that Andrea Jones was contact person for the application and held 100 percent of the ownership interest in the “Individual and/or Entity Ownership of Licensee” section. This application did not provide Hailes’ license number. The provided Federal Employer Identification Number (FEIN) 47-3080379 is associated with Hailes Assisted Living Facility, Inc. The 2016 “renewal application” provided an ALF name and ALF owner different from the Hailes’ licensee of record. By correspondence dated March 10, 2016 (AHCA’s Exhibit 3),4/ AHCA returned this application. This March 10th letter was addressed to Andrea Elise Jones as the administrator for Hailes and provided the following explanation for the return of the application: Pursuant to Section 408.815(2), Florida Statutes a facility while in litigation, must file a renewal application if their license is due to expire during the litigation process. On February 22, 2016, the Agency for Health Care Administration received an application from you which was marked as renewal, but after review, it was determined it was a change of ownership application. This determination is based on the fact that Adrianne Wilson, is currently the 100% owner of Hailes Boarding Home AL 5776. The application received on February 22, 2016 lists Hailes Assisted Living Facility Inc, FEIN No. 47-3080379 as the licensee and Andrea Jones as 100% of the licensee, making it a change of ownership instead of a renewal application. Based on this determination the application is being returned to you along with a refund form for the total amount submitted with the application $574.65 and Hailes Boarding Home licensure status will be changed to failed to renew. Thus, Hailes was put on notice that AHCA deemed the “renewal application” to be a change of ownership application (CHOW) and returned it to the person who submitted it. The responsibility fell to Hailes and its owner(s) or administrator to file a correct renewal application. AHCA did not receive a renewal application or any other submission from Hailes. On April 7, 2016, AHCA issued a “Notice Of Intent To Deny Renewal Application 60936” (NOID). Within that NOID, AHCA provided the “Specific Basis” for the denial determination as follows: Per 59A-35.060(8) Florida Administrative Code (F.A.C.), an application for license renewal may only be filed by the licensee. The name of the current licensee is Adrianne Wilson. The entity (Hailes Assisted Living Facility Inc.) that submitted the renewal application did not have the authority to do so. The Federal Employer Identification Number (47- 3080379) listed on the application differed from that of the current licensee’s sole proprietor FEIN 26-2977465. The licensee has been cited for unlicensed activity pursuant to Section 408.812, Florida Statutes; and The provider has failed to submit an employee roster pursuant to Section 435.12(2), Florida Statues [sic] (F.S.). Approximately a year later, on February 13, 2017,5/ another application was submitted as a “renewal application” for an entity located at 1009 N. Willow Avenue Tampa, Hillsborough, Florida 33607. Hailes’ license number AL5776 was listed on this application. However, the name of the ALF was listed as Adrianne Wilson, not Hailes. The FEIN number 47-3080379 is associated with the entity called “Hailes Assisted Living Facility, Inc.” AHCA’s witness, Keisha Woods, is the unit manager for the assisted living unit at AHCA. Ms. Woods testified that AHCA reviewed the application, and subjected it, as it does with all renewal license applications, to the same standard as initial license applications. The standards are found in rule 59A-35. On March 14, 2017, AHCA issued the ANOID. Within this ANOID, AHCA provided the basis for this determination as follows6/: The specific basis for this determination is pursuant to Chapter 59A-35.060(8), Florida Administrative Code (F.A.C.); an application for license renewal may only be filed by the current licensee. On February 21, 2016, an ALF application marked as a renewal was submitted on behalf of Hailes Boarding Home, Inc. This application has Hailes Assisted Living Facility, Inc. as the name of the ALF and the licensee. Agency records and previous applications have Hailes Boarding Home as the name of the ALF and Adrianne Wilson as 100% “Sole Proprietor” as the licensee. This application was denied due to a change in its ownership. The ownership is listed as a corporation and not as a sole proprietor. On February 13, 2017, an ALF application was received marked as a renewal with the owner of the ALF listed as Adrianne Wilson and the ownership type as “Individual”. However, the Federal Employer Identification Number provided for the licensee is associated with Hailes Assisted Living Facility, Inc. This again shows a change of ownership from a sole proprietor to a corporation. Based upon the Florida Department of State, Division of Corporations (Sunbiz) Hailes Boarding Home is listed as a sole proprietor with the Federal Employee Identification Number (FEIN) 26-2977465; the FEIN 47-3080379 listed on this application is associated with Hailes Assisted Living Facility, Inc., a corporation. This constitutes a change in the FEIN, and shows the licensee/entity has changed from a sole proprietor to a corporation, see section 408.803(5)(a) Florida Statutes (F.S.), making this a change of ownership application, not a renewal application. Ms. Jones is aware that Hailes has been licensed by AHCA for over 20 years, and that renewals are filed every two years. Further, Ms. Jones is aware there are specific time frames for filing a CHOW.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Health Care Administration enter a final order upholding the denial of Hailes’ licensure renewal application.8/ DONE AND ENTERED this 7th day of September, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2017.
