The Issue The issue is whether Respondents' foster home license should be revoked because of inadequate supervision of foster children, as alleged in Petitioner's letter dated December 22, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Department of Children and Family Services (DCFS), seeks to revoke the foster home license of Respondents, Wendy and David Palmer. In a letter dated December 22, 1998, DCFS alleged that Respondents allowed "foster children to be taken overnight over one hundred miles from [their] home with no supervision from [Respondents] as the licensed foster parents." The charging document went on to allege that their "neglect materially affected the safety and welfare of the children because they were given alcoholic beverages and were allowed to sleep with men." Respondents denied the allegations and requested a formal hearing to contest the proposed action. Their license has remained inoperative pending the outcome of this proceeding. Respondents have operated a foster home around six miles north of Altoona, Florida, since May 1994, caring mainly for teenage females who had "a lot of behavior problems" and had failed in prior placements. The home is licensed by DCFS under Section 409.175, Florida Statutes. Children were placed in their home by the Lake County Boys Ranch, a private organization which had a contract with DCFS to provide that service. On an undisclosed date, but prior to August 1998, three females, M. G., G. M., and D. W., were placed in Respondents' home. At that time, each of the girls was around fifteen years of age. G. M. had almost fifty prior placements, while D. W. had failed in "several" other placements. M. G. had also been in a number of "non-relative" placements, but the exact number is unknown. All three had a reputation of being difficult to handle and were considered "high-risk." None testified at the final hearing and thus any comments they may have made to a DCFS investigator are hearsay in nature. Respondents' daughter, Jamie, who was 21 years old when the events herein occurred, had been approved to serve as a respite provider at the foster home. This meant she could assist her parents by transporting the children to medical or visitation appointments and provide supervision in the home for a limited period of time. Examples of her duties included transporting the three girls to doctor's appointments, to lunch, or to the beach for recreational purposes. She considered her relationship with the girls to be "like sisters." On August 3, 1998, Jamie decided to travel to Hampton in Bradford County, Florida, in an extended cab pick-up truck to retrieve the remainder of her personal belongings from the residence of her former boyfriend, Scott, a 22-year-old male. Hampton is approximately 83 miles from Altoona, but the distance between the foster home and Scott's residence was no more than 75 miles or so. The one-way trip less took less than an hour and a half. Jamie spoke with her mother around 10:30 or 11:00 a.m. that day and received permission for the three girls to accompany her on the trip. The trip was perceived by Wendy Palmer as a recreational trip, and one that would enable the girls to build trust in the family since it allowed them to take a short trip away from their home and to return later that same day. Contrary to the charging document, this was not an illegitimate purpose, and Respondents' authorization of the trip at that point in time could not reasonably be forseen as an act which would materially affect the girls' health or welfare. Jamie was told to go straight to Hampton, pack her belongings, and then return. Jamie eventually departed the foster home between 2:00 p.m. and 2:30 p.m. and arrived at Scott's residence shortly before 4:00 p.m. Although Scott was not at home when the group first arrived, he returned shortly thereafter with "two buddies," both adult males. A verbal argument between Scott and Jamie ensued, and Scott remained at the residence for several hours while the two discussed why their relationship had gone sour. Scott's two friends, however, remained outside the residence by his truck. Just before 6:00 p.m. Jamie telephoned her mother to advise that she had safely arrived in Hampton, that she was packing, that Scott was on the premises attempting to change her mind about leaving him, and that it looked like it was going to rain. Scott and his friends left a few minutes later, and even though Scott had a key to the residence, he and his friends did not return that evening. Before 9:00 p.m., Jamie again telephoned her mother to advise that it was storming, that she was upset after arguing with Scott, and that she was afraid to drive home in rainy weather at that hour with the girls. Accordingly, she asked permission to remain at Scott's residence that evening and drive home the first thing in the morning. Although Scott's residence was not a licensed, inspected, and approved foster home, Wendy Palmer agreed that under those extenuating circumstances, it was appropriate to remain in Hampton overnight. Wendy Palmer added that she would have driven to Hampton herself to retrieve the girls, but she did not wish to drive on two-lane roads in the rain at that late hour. Wendy Palmer's decision that evening technically violated her duty as a foster parent to provide round-the-clock supervision for the girls in a licensed foster home. Indeed, without the order of a court, foster children are not allowed to stay in an unlicensed home. After talking with her mother, Jamie drove to a local convenience store and purchased two Bud Lights in a can. She returned to the residence and consumed them herself. Contrary to the allegations in DCFS's letter dated December 22, 1998, the girls were not given alcoholic beverages. Also, Jamie did not allow adult males to enter the premises that evening. Further, they did not engage in sexual relations with other men. Indeed, except for the girls and Jamie, there was no one else present, and all four slept in the living room of the residence. Although Jamie allowed the three girls to smoke that evening, this conduct is not cited as a ground for revocation in the charging document. The next morning, Jamie telephoned her mother a third time and advised that they were getting ready to drive back to Altoona. The group returned a short time later. On October 9, 1998, or some two months later, the three girls ran away from the foster home and were eventually picked up by law enforcement authorities in Wildwood, Florida. At that time, D. W. made allegations for the first time that while in Hampton on the evening of August 3, 1998, the group had been given alcoholic beverages by Jamie, that they had engaged in sexual intercourse with friends of Scott, and that Jamie had become intoxicated. These allegations led to an investigation by DCFS and its decision to revoke Respondents' foster home license. They also resulted in a verified report of institutional neglect on November 2, 1998, which is found in abuse report 98-113392. DCFS takes the position that the trip had no legitimate purpose because the girls would receive no discernible benefit from the trip. This assertion has been rejected above. It further contends that the teenagers were placed at risk when Respondents allowed the girls to stay overnight with a respite worker in an unlicensed home. According to DCFS, the appropriate action would have been for the Palmers to advise Jamie to transport the girls to a "public shelter" in the area, or alternatively, for the Palmers to drive to Hampton that evening and pick them up. Because these latter steps were not followed, Respondents violated DCFS protocol, and they committed a negligent act within the meaning of the statute. During the four-year period in which Respondents served as foster parents, they provided outstanding care for foster children who were most at-risk, and all of whom had failed in prior placements. Other than this one incident, there are no blemishes on their record. Moreover, they have the continuing support and confidence of the private agency which makes local placements of foster children pursuant to a contract with DCFS. These considerations, as well as the extenuating circumstances which occurred on the evening of August 3, 1998, should be taken into account in determining whether Respondents' license should be disciplined.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order determining that Respondents violated Section 409.175(8)(a)1., Florida Statutes, and that their foster home license be suspended for one year effective December 22, 1998. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of June, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John N. Spivey, Esquire 14550 U. S. Highway 441 Tavares, Florida 32778 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
Findings Of Fact Petitioner is a recipient of benefits disbursed by the Respondent and herein challenges the department's practice with the administering of "shelter" payments in the Respondent's Program of Aid to Families With Dependent Children (AFDC). The Petitioner is a mother who presently receives full AFDC shelter assistance payments through this program. In March of 1977 she applied for these benefits and was initially determined to be ineligible. The basis of this ineligibility was the interpretation, by the department, of its rules that shelter payments were available only to recipients who had a payments obligation on the dwelling in which they lived. In other words, the Petitioner was determined to be ineligible for payments because she did not live in the same house for which she had a mortgage obligation. The department construes its rules in its Assistance Payments Manual to restrict shelter payments only to recipients who actually live in the dwelling for which they are obligated to make payments. The Petitioner later moved into the dwelling for which she makes a mortgage payment. At that time she was ruled eligible for payments and received monthly assistance payments. In addition, the Petitioner was granted retroactive sustenance payments from the date of her initial application. The Petitioner alleges that the Assistance Payments Manual promulgated by the department and used by its staff members is an invalid rule in that it fits the definition of a rule in Section 120.52(14), F.S., and has not been formally adopted through rulemaking proceedings as required by Chapter 120, F.S. The department acknowledges that the Assistance Payments Manual has not been adopted as a rule pursuant to Chapter 120, F.S., the Administrative Procedure Act. This case went to final hearing on December 21 , 1977, at Orlando, Florida. The Petitioner did not appear at that proceeding. Testimony was taken from Cheri Beck, a payments supervisor for the Department of Health and Rehabilitative Services. Also, the deposition of Ms. Beck taken on December 19, 1977, was received into evidence. An additional deposition, that of Sylvia McElroy, another employee of the Respondent, was also received. After reviewing the submissions and the testimony received, it is the determination of the undersigned that the Petitioner has not demonstrated that she is substantially affected by the alleged rule and has inadequate standing to maintain this proceeding. The crucial aspect of the Petitioner's circumstance is that although she was initially determined to be ineligible for assistance payments because of the restrictions in the Assistance Payments Manual, she was later granted eligibility and issued retroactive payments. Therefore at the time this matter went to hearing the Petitioner was not adversely affected by any determination of the Respondent based upon the use of their Assistance Payments Manual. The Petitioner has suffered no loss which can be attributed to the alleged rule. Without having adequately demonstrated that she is Substantially affected by the alleged rule, Petitioner is not entitled to a determination of its validity. The First District Court of Appeal considered this identical question in the case of Florida Department of Offender Rehabilitation v. Leroy Jerry, So.2d , (Case No. FF-303, Jan. 10, 1978). In that opinion the court determined that a Prisoner incarcerated in a State institution was not entitled to a determination of the validity of an alleged rule Since he had not demonstrated he had suffered any hardship because of the operation of the rule. In a similar fashion the Petitioner here has had any possible loss of benefits restored to her by the Respondent. She no longer has cause to receive a resolution of this Petition Pursuant to Section 120.56, F.S. It is, therefore, ORDERED: That the Petition is dismissed. Further, since the Petitioner has no standing to receive a determination of her Petition, no ruling is made on the Proposed findings submitted at the final hearing. DONE and ORDERED this 20th day of January, 1978, in Tallahassee, Florida. KENNETH G. OERTEL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1978. COPIES FURNISHED: Charles L. Colbrunn, Esquire Greater Orlando Area Legal Services, Inc. 128 W. Central Boulevard Orlando, Florida 32802 James Mahorner, Esquire Dept. of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32304 Ms. Liz Cloud Department of State 403 E. Gaines Street Tallahassee, Florida 32304
The Issue Whether Petitioner is entitled to a foster care license upon satisfactory evidence of financial ability to provide care for children placed in her home.
Findings Of Fact Petitioner took the required courses through the Department and applied for a foster home license. She passed all home visits with flying colors and was recommended for licensure. Her application contained a family financial statement which reflected her monthly income as $660.00 and her estimated monthly liabilities (expenditures) as $625.62. The Department calculated Petitioner's residual income as $34.38 by deducting her usual expenses from her usual income. Because substitute care parents must have sufficient income to assure the stability and security of their own family without relying on foster care payments and must have sufficient income to cover four to six weeks of a foster child's care during anticipated lag time in receiving foster care payments, Petitioner's application was denied. The $660.00 Petitioner declared in her financial statement is made up of $460.00 monthly social security income plus $200.00 from unenumerated sources. Petitioner is not employed outside the home. Petitioner testified credibly that, as of the date of hearing on January 18, 2001, she had nearly $15,000.00 saved in her bank account, mostly as the proceeds of the "Black Farmers Settlement" of a class action lawsuit. In support of her testimony, Petitioner also had admitted in evidence an undated letter addressed to her, showing transmittal to her of a check for $50,000.00 "cash award," in the cases of Pigford et al. v. Glickman, and Brewington et al. v. Glickman. Petitioner also had admitted in evidence an AmSouth "Official Check," dated January 3, 2001, made out to her in the amount of $14,928.88. This appears to be a certified cashier's check she asked for in order to demonstrate her bank balance for the hearing. Petitioner further testified that she had made a deposit to her checking account. She had admitted in evidence an AmSouth customer receipt (deposit slip) showing an AmSouth account balance of $59.85 to which a $3,000.00 check had been deposited on November 1, 2000. The numbers on this item did not match those on her check cashing card or her voided check, which items were also admitted in evidence. However, there is no reason to believe the numbers would match, considering modern automatic banking safeguards. What, precisely, this receipt was intended to demonstrate is unclear. Much of Petitioner's $50,000.00 settlement monies went to pay for hip replacement surgery, and she is fully recovered. Prior to making her application and while she was still in training, that is, prior to November 29, 1999, the Department allowed Petitioner to take in some foster children on an emergency basis. The understanding at that time was that Petitioner would bear all the children's expenses with no reimbursement by any government program except for their medical aid. During this period, Petitioner frequently complained that she had no money to put gas in her car to bring a certain child or children to the Department office for their medical care or to see their case workers. As near as can be determined from this record, these events occurred in the fall of 1999 or early in the year 2000, but without information as to when Petitioner received her lump-sum class action settlement, it is impossible to assess whether these events occurred before or after Petitioner received her class action settlement. Petitioner's Lease for Voucher Tenancy, Section 8, Tenant-Based Assistance Rental Voucher Program, signed April 7, 2000, stated that she lives in the home with four other individuals: Irene Turner, Lionel Cook, Iman McCullough, and Christina Honeycutt. However, a June 26, 2000, Home Study Report concluded, based on visits in April and May 2000, that Petitioner lives alone. Iman McCullough, a foster child, lived in Petitioner's home for a short period in 1999, but by September 2000, she was living in another foster home. Christina Honeycutt, also a foster child, lived in Petitioner's home only briefly in 1999. Another individual listed on the April 7, 2000, lease as a resident of the home is Lionel Cook, one of Petitioner's sons. However, the June 26, 2000, Home Study Report stated that Petitioner did not know her sons' addresses or phone numbers and that she had stated she has no contact with them. The Petitioner's Section 8 rent is $30.00 per month, calculated on five residents in the home. It is conceivable that a change in the number of people in the home may alter the amount paid for rent. There was no evidence presented concerning how much per child Petitioner would receive if her application were granted. Petitioner testified that she hoped to have four children assigned to her. The June 26, 2000, Home Study Report recommended that she receive five children.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying Petitioner's application for a foster home license at this time and without prejudice to reapply. DONE AND ENTERED this 1st day of March, 2001, 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 1st day of March, 2001.
The Issue The issue is whether Petitioner's applications to renew licenses for two Residential Level II facilities in Davenport, Florida, should be denied and a $2,500.00 fine imposed for the reasons given in the Department of Children and Families' (Department) Amended Denial of Applications & Imposition of Fines issued on February 8, 2018.
Findings Of Fact Background The Department is charged with the responsibility of regulating the licensing and operation of residential treatment facilities pursuant to chapter 397, Florida Statutes (2017). Petitioner is a Delaware limited liability corporation authorized to conduct business in the State of Florida. Subject to the outcome of this proceeding, Petitioner is licensed to operate two Residential Level II facilities in Davenport under the name Cares Treatment. One facility is located at 146 Sunset View Drive (Case No. 18-0230), the other at 389 Sand Ridge Drive (Case No. 18-0234). The licenses were issued on December 15, 2016, and were to expire on December 14, 2017. Each license authorizes Petitioner to "provide substance abuse services for Adults and/or Children/Adolescents for the following component: Residential Level 2 (6 beds)."4/ Resp. Ex. 2. The Torres family home is not a licensed facility and services cannot be provided to residents who reside at that location. Petitioner is not licensed to provide services under the Partial Hospitalization Program (PHP), the Outpatient Program (OP), or the Intensive Outpatient Program (IOP).5/ These services require a separate license from the Department. In December 2017, Petitioner filed with the Department new applications to provide those services. However, the applications were denied and no appeal was taken. According to the renewal applications, Petitioner provides a "residential treatment facility for children and adolescents." Resp. Ex. 3. Each facility "is a free-standing residential facility which provides a structured living environment within a system of care approach for children, adolescents and adult[s] who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities." Id. Petitioner's facilities are a family-run business. Roberto Torres, Jr. (Mr. Torres), is the Chief Executive Officer and manager of the limited liability corporation; Cecilia Torres, his wife, is the Treasurer/Chief Financial Officer; Karla Torres, a daughter, is the Vice President/Chief Administrative Officer; Roberto Torres, III (the son), is the Secretary/Chief Information Officer; and Kristina Torres, a daughter, is the Ambassador/Chief Relationship Officer. Resp. Ex. 4. On November 27, 2017, Petitioner filed its applications for renewal of the two licenses. On December 1, 2017, the Department issued separate, but identical, letters denying both applications on the grounds they were not timely filed and they were incomplete. Resp. Ex. 5. On February 16, 2018, the Department was authorized to amend its letters of denial with a single amended denial document, which combined the original charges in the two letters into Counts I and II and added new Counts III, IV, and V. Resp. Ex. 1. The amended denial letter also seeks to impose a $2,500.00 administrative fine for violating various Class II rules. The specific rules are not identified in the original or amended charging documents, but the Department's PRO cites Florida Administrative Code Rule 65D- 30.003(1)(a) and "rules set forth in 65D-30" as the rules on which it relies. Because proper notice of the specific rules was not given, the rule violations have not been considered. The charges in the amended denial letter can be summarized as follows: Count I - The application for the facility at 146 Sunset View Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count II - The application for the facility at 389 Sand Ridge Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count III - In November 2016, O.G., a 16-year-old female who had been recently discharged from a Baker Act facility, was admitted for treatment of substance abuse and mental health issues. After residing a few months at the Sunset View location, she was moved to the Torres family home, an unlicensed facility, where she remained for one or two months. By providing services at that unlicensed location, Petitioner violated section 397.401(1). She was then moved to the Sand Ridge location for two or three months before being returned to the Torres family home. She continued to receive substance abuse treatment at the family home until her discharge two or three months later. This constitutes a second violation of the same statute. While under the care of Petitioner, O.G. was subjected to actions which resulted in verified abuse reports against Mr. Torres and his son and contributed to the delinquency and exploitation of a child. Such conduct constitutes a threat to the health or safety of O.G. in violation of section 397.415(1)(d). Count IV - On October 19, 2017, J.W., who transferred from a Baker Act facility, was accepted by Petitioner for care and to receive "partial hospitalization program" services, which Petitioner is not licensed to provide. This constitutes a violation of sections 397.401(1) and 397.415(1)(a)2.c. J.W. was later discharged in contravention of his wishes and desires, which resulted in him relapsing and again being Baker Acted. This conduct constitutes a threat to J.W.'s health or safety in violation of section 397.415(1)(d). Count V - On January 23, 2018, the Department attempted to conduct an onsite inspection at both licensed facilities to review J.W.'s files, but was denied access to the premises. Petitioner later failed to respond to a written request by the Department for records relating to J.W. and O.G. This conduct constitutes a violation of section 397.411. The charging document asserts the conduct in Count III violates four Class II rules (not otherwise identified), for which a $500.00 fine should be imposed for each violation; and the conduct described in Count IV violates "applicable" Class II rules (not otherwise identified), for which a single $500.00 penalty should be imposed. Rule 65D-30.003(1)(a), the only rule cited in the Department's PRO, requires in relevant part that "all substance abuse components" be provided "by persons or entities that are licensed by the department pursuant to Section 397.401, F. S." The Charges Counts I and II Section 397.407(8) provides that "the Department may deny a renewal application submitted fewer than 30 days before the license expires." For Petitioner to meet this deadline, license renewal applications were due on or before November 15, 2017. An application is not considered filed until an application with the signature of the chief executive officer is submitted by the applicant. Around 3:30 p.m. on November 27, 2017, Mr. Torres spoke by telephone with Ms. Harmon, the Department System of Care Coordinator, regarding three new licensure applications he was filing. During the conversation, he was reminded that renewal applications for his two existing licenses had not been filed. Mr. Torres responded that he "would have to get on that." Properly signed renewal applications were submitted electronically at 5:00 p.m. and 5:42 p.m. that afternoon. In his cross-examination, Mr. Torres attempted to establish that the Department's website, the Provider Licensing and Designation System (PLADS), was periodically inoperative, and this prevented him from filing his on-line applications in a timely manner. However, there is no credible evidence to support this claim. In fact, after Mr. Torres raised this issue early on in the case, Ms. Harmon reviewed the activity log of Mr. Torres' two on-line applications and found that he began the application process in late August or early September 2017, but did nothing further until he hit the submit button after speaking with her on November 27, 2017. Also, during this same period of time, the PLADS program (to which all applicants have access) indicated that the applications were in "Waiting Approval" status, which meant the applications were "in process" but had never been submitted. Therefore, the applications were not timely filed.6/ Section 397.403(1)(f) requires license applications to include, among other things, "proof of satisfactory fire, safety, and health inspections." Neither application filed on November 27, 2017, included an updated Treatment Resource Affidavit, a current Fire and Safety Inspection form, and a complete and current Health Facility and Food Inspection form. Therefore, the applications filed on November 27, 2017, were incomplete. Count III On November 17, 2016, O.G., then a 16-year-old female, was admitted for treatment at the facility. O.G. had a history of bi-polar episodes, depression, and drug abuse. Before seeking treatment at Petitioner's facility, she had been Baker Acted twice. After learning about Petitioner's facility through another provider, O.G.'s family placed her in the facility to address her substance abuse and behavior problems. Upon admission, a treatment plan was devised by a licensed mental health counselor (LMHC), with a target completion date of May 17, 2017. Resp. Ex. 10. The treatment plan listed four staff members overseeing her case: Karla Torres (case manager); the LMHC; and S.F. and K.V., two "caregivers" or interns. Id. O.G. was discharged from the facility nine months later on August 14, 2017. Petitioner was paid approximately $166,000.00 by O.G.'s parents for her nine-month stay. O.G. was initially placed in the facility located at 146 Sunset Drive, where she remained for approximately three months. She was then moved to the Torres family home at 2347 Victoria Drive in Davenport for two or three months. The Torres home is not a licensed facility. By housing her at an unlicensed location and providing services during that period of time, Petitioner violated section 397.401(1), which makes it unlawful to provide substance abuse services at an unlicensed location. O.G.'s parents were unaware that their daughter was residing in the unlicensed family home. After Mr. Torres and O.G. "got into an argument," she was moved to the facility at 389 Sands Drive for several months. She then returned to the Torres home, where she remained for two or three months until she was discharged. By housing her at an unlicensed location and providing substance abuse services, Petitioner violated section 397.401(1) a second time. During her stay at the Torres home, Mr. Torres discussed "sex" with O.G.; he told her that he cheated on his wife; and he complimented her "quite a few times" for having "a nice body." He also told her that "18" was a special age and if she were 18 years old, things would be different. He added that her parents were "too strict." These highly inappropriate comments were especially egregious in nature, given the fact that O.G. was a minor with mental health and substance abuse issues, and she was living in the licensee's family home. One photograph of O.G. taken in the home shows Mr. Torres standing in the background donned in his pajamas. Resp. Ex. 16. These actions constitute a violation of section 397.415(1)(d)2., which makes it unlawful to commit an intentional or negligent act materially affecting the health or safety of an individual receiving services from the provider. Mr. Torres occasionally escorted O.G. to two local bars (Miller's Ale House and Marrakesh Hooka Lounge) in Champions Gate. On one visit to Miller's Ale House in April or May 2017, he purchased her a Blue Moon beer, even though she was a minor and in a substance abuse program. She consumed the beer in his presence while the two sat at the bar. Although Mr. Torres attempted (through argument) to deny the incident, O.G. filmed the event on her cell phone. Resp. Ex. 13. This action by him also constitutes a violation of section 397.415(1)(d)2. Petitioner argues in its PRO that the whole incident was a fabrication and the result of a conspiracy by O.G.'s father, the Tampa Police Department, and Department counsel. The contention is rejected. When O.G. was discharged from the residential treatment facility in August 2017, Petitioner enrolled her in another program, IOP, which required her to periodically return to the facility on weekends for further treatment. Her first return visit was the weekend of August 26, 2017. During the weekend visit, the son gave her a cell phone. O.G.'s admission document for the IOP program indicated she would be given IOP services for 60 to 90 days, with a goal of her being substance free at the end of that period. Resp. Ex. 24. There is no record of her being discharged from the program. The Department argues in its PRO that by providing IOP services to O.G., Petitioner was providing a service beyond the scope of its license. However, this allegation was not included in the amended charging document and has not been considered. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(a licensee may not be disciplined for an offense not charged in the complaint). After being discharged from her original treatment plan on August 14, 2017, O.G. returned to her mother's home. Except for one weekend visit to Petitioner's facility for IOP services, she remained at home until September 16, 2017. That day, O.G. ran away from home with Preston, a resident she had met at Petitioner's facility. After leaving home, she went to Melbourne, and then to West Palm Beach. A Missing/Endangered Runaway Juvenile bulletin was posted by law enforcement on October 5, 2017. Resp. Ex. 11. During this period of time, Petitioner’s records show that O.G. was still enrolled in the unlicensed IOP program. Resp. Ex. 24. While in the West Palm Beach area, O.G. contacted the son on the cell phone he had given her and told him she had run away from home. She asked him to send her some money so that she could go to Tampa to work in a strip club. Because O.G. was not old enough to accept a wire money transfer, the son wired $600.00 to a friend of O.G., who gave her the money. Using the money provided by the son, O.G. traveled to Tampa and met the son on September 30, 2017. The two went to Todd Couples Superstore, where he purchased several adult entertainment outfits she could wear to audition for a job in a strip club. Resp. Ex. 12. He also purchased her various personal items at a Walgreens. The son then drove her to several clubs to audition for a job. After several auditions, she was hired by Scores Tampa, a local strip joint where "people take off their clothes for money." O.G., who was only 17 years old at the time, signed an employment contract on September 30, 2017, using a borrowed driver's license of S.F., a 21-year-old female. Resp. Ex. 15. S.F. was a former intern at Petitioner's facility and is listed as a member of the team staff on O.G.'s initial treatment plan. By that time, S.F. had left Petitioner's facility and moved back to Tampa. That same evening, O.G. began working in Scores Tampa. O.G. says she took off her clothes while performing. The son remained in the club while she worked. After she got off work at 2:00 a.m., he drove her to S.F.'s house. O.G. continued working at the club for the next few days. With the assistance of local law enforcement, O.G. returned to her mother's home on October 7, 2017. After she ran away from home, and even while working in the club, O.G. maintained contact with Mr. Torres through texts and Facetime and asked him not to report her whereabouts to anyone. Although O.G.'s mother spoke to Mr. Torres on several occasions after O.G. went missing in September 2017, neither Mr. Torres nor the son informed her of the daughter's whereabouts. On November 30, 2017, the Department received a report of alleged human trafficking and sexual exploitation of a child. The alleged perpetrator was the son, while the victim was identified as O.G. Because the son was an employee of Petitioner, an institutional investigation was conducted. The investigation was closed on December 26, 2017, with a confirmed report of Human Trafficking-Commercial Exploitation of a Child against the son. Resp. Ex. 17. During the investigation, Mr. Torres and members of his family declined to be interviewed or answer any questions. Instead, they referred all questions to their attorney. On February 6, 2018, the Department received another report of abuse involving Mr. Torres. The report alleged that in April or May 2017, Mr. Torres transported O.G. to a bar at Miller's Ale House in "Davenport" [sic] and purchased her a beer. After an institutional investigation, the file was closed on March 1, 2018, as verified for Substance Misuse – Alcohol against Mr. Torres. Resp. Ex. 18. See also Finding of Fact 18. Mr. Torres declined to participate in the investigation. By clear and convincing evidence, the Department established that the actions of Mr. Torres and his son presented a threat to the health or safety of O.G. in contravention of section 397.415(1)(d)2. Count IV J.W., who did not testify, is a 42-year-old male who was discharged from a hospital on October 9, 2017 (after being Baker Acted), and admitted to Petitioner's facility the same day to receive PHP services. He was diagnosed as having mental health and substance abuse issues and a history of suicidality. He voluntarily left the facility on November 9, 2017. In its PRO, Petitioner characterizes J.W. as "a disgruntled addict." While a resident at the facility, J.W. received a few video sessions with a Miami Springs psychiatrist, who was identified on the renewal applications as the facility medical director, and he was given online counseling sessions for two weeks by an LMHC, who resided in Palm Bay and worked as an independent contractor with the facility. Neither professional was told by Mr. Torres that Petitioner was not licensed to provide PHP services. By providing PHP services to J.W., Petitioner violated sections 397.401(1) and 397.415(1)(a)2.c. According to the LMHC, on October 24, 2017, she was directed by Mr. Torres, who is not a licensed clinician, to "discharge" J.W. from the PHP program and place him in a lower level of care, Sober Living. Resp. Ex. 25. This would still allow J.W. to remain a resident at the facility but not receive the PHP services. Although the charging document alleges that J.W. did not wish to be discharged from the PHP program, and this caused him to have a relapse in his condition and later Baker Acted again, there is no competent evidence to establish this string of events. Count V Section 397.411 requires all licensees to provide Department representatives access to their facilities and to allow the inspection of pertinent records. Based upon information from a provider in Jacksonville that Mr. Torres had requested its assistance in providing PHP services to J.W., the Department instituted an investigation of Petitioner. In January 2018, the Department attempted to conduct an onsite inspection of Petitioner's facilities and to review the files relating to J.W. The inspectors were denied entry. Thereafter, the Department sent a written request to Petitioner for the records of J.W. and O.G. No records were provided and Petitioner failed to respond to the request. These actions constituted a violation of section 397.411. At hearing, Mr. Torres contended (through argument) that because the Department had already taken preliminary action on December 1, 2017, to deny his applications, there was no requirement that he provide access to the facility or respond to written requests for records. This assertion has been rejected. See § 397.411(1)(c), Fla. Stat. (an application for licensure as a service provider constitutes full permission for an authorized agent of the department to enter and inspect at any time).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the applications for renewal of Petitioner's two licenses. An administrative fine should not be imposed. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 27th day of September, 2018.
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
The Issue The issue presented herein is whether or not Petitioner is eligible to be assigned foster children.
Findings Of Fact Based on the Hearing Officer's observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record complied herein, I make the following relevant factual findings: Petitioner, Johnnie Mae Smith, was licensed as a foster parent on July 1, 1987, for one (1) female foster child (Certificate No. 787-48-1). Thereafter, Petitioner requested that foster children be placed in her home and she was denied. Specifically, by letter dated December 4, 1987, Gloria P. Simmons, District Operations Manager, Children Youth and Family (CYF) Services, advised Petitioner that "we are not placing any foster children in your home for the following reasons: Insufficient income to provide adequate cash flow to support additional expenses incurred. Lack of integrity in reporting income while receiving AFDC 1/ payments. "Your provocative, overbearing, abrasive, and implusive (sic) behavior." Petitioner was advised of her right to appeal Respondent's denial of placement of foster children in her home and she timely appealed that denial. Gene Majure, (Majure hereafter) Senior CYF Counselor, has been employed by Respondent in excess of 16 years. Majure is presently assigned to making license recommendations for foster home applicants in Dade County. Majure was assigned Petitioner's foster home applicants license application for review. During October 1986, Petitioner received pre-service training as a foster parent at which time she made application for licensure as a foster parent. Petitioner's initial foster home study was conducted by Gene Majure, who rejected it primarily on the basis of "insufficient income." Petitioner protested her initial foster home application rejection and instead of being processed through normal appeal channels, she was informed by Leonard Helfand, District Legal Counsel, that she would be reinvited to pre- service training and she could reapply. Petitioner reattended the second part of pre-service training on May 21, 1987, and she officially reapplied. Lois Rossman, (hereafter Rossman) Senior Youth and Family Counselor, and Peggy Ann Siegal, Children Youth and Family Supervisor, visited Petitioner in her home on June 12, 1987. Their interview of Petitioner revealed that Petitioner shared her three-bedroom home in Opa Locka with her two daughters, Chantrell (15) and Latrise (14). Petitioner is separated from her husband for approximately one year and his specific whereabouts is unknown. Majure again visited Petitioner during January 1987. At that time, Majure inquired as to Petitioner's financial income and Petitioner responded verbally, and in writing, on October 9, 1986, and again on June 12, 1987, that she has $400 per month earned income which income is derived from a laundry service which she has operated for the past 5 years. On the other hand, Petitioner signed a monthly income statement with AFDC indicating that she has no earned income. To the extent that Petitioner has earned income, she incorrectly reported her income to AFDC since October 1986, which may result in either an overpayment or fraudulent involvement in her income reporting. (Respondent's exhibit 3). Rossman was also assigned Petitioner's case to determine her eligibility to be assigned foster children. Rossman was present on the June 12, 1987, visit to Petitioner's residence at which time Petitioner again related that she had earned income of approximately $400 per month which income statement was contrasted with the available records that Respondent's employees had obtained from the AFDC office wherein Petitioner indicated that she had no earned income. To the extent that Petitioner does not have earned income, she has indicated a total income of $264 per month and stated expenses of approximately $400-$605 per month which creates cause for concern as to her ability to maintain a stable and secure family environment for foster children. Rossman also became involved in circumstances wherein Petitioner repeatedly called the CYF counselor's office demanding to speak with supervisory employees wherein she demanded that she be assigned foster children since she was licensed. When secretarial employees advised Petitioner that her message would be relayed and that as soon as a supervisor or other placement official became available, they would return her call, Petitioner would again call using an alias to attempt to get through. This problem persisted for several months following the time that Petitioner's foster home application was approved in July 1987. Respondent's secretarial employees who answer the phone and greet clients in person have been trained to deal with irate and abusive clients, however Petitioner's unrelentless calling became so problematic that employees felt harassed and one employee broke down and starting crying based on Petitioner's persistence about seeing or talking to certain supervisory employees at certain times. Prior to the time that Petitioner's foster home license application was approved, she was much more pleasant in her conversations with employees in the CYF office. (Testimony of Peggy Siegal and Ellie Roman). Petitioner also keeps three large dogs in her yard, one of which is a Pit Bull and two are large German Shepherds who made threatening postures at Respondent's employees when they visited Petitioner's home for inspections. Although Petitioner maintains that the two German Shepherds do not belong to her, they were at her home on each occasion when she was visited by licensing staff and Respondent's sanitation inspector. Petitioner keeps the dogs, which roam at will around the fenced area her home, at bay by swinging a rubber hose at them. The fact that Petitioner is receiving welfare benefits is not an automatic disqualification which prevents her from being assigned foster children. Petitioner encountered problems with her spouse which culminated in a separation and she was, therefore, left with insufficient income to maintain herself and she applied for and is receiving welfare benefits. Petitioner plans to begin employment at Jackson Memorial Hospital shortly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent, Department of Health and Rehabilitative Services, enter a final order finding that Petitioner is not eligible to be assigned foster children. 2/ DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of October, 1988. JAMES E. BRADWELL 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 13th day of October, 1988.
The Issue Whether, Respondent, Asurion Services, LLC (“Respondent” or “Asurion”), engaged in unlawful employment practices as alleged by Petitioner, Annemarie Wolny (“Petitioner”), in violation of the Florida Civil Rights Act of 1992 (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1 1 Unless otherwise noted, all statutory references are to the 2020 version of the Florida Statutes.
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Asurion is a provider of electronic device insurance, warranty and support services for cellular phones, consumer electronics, and home appliances. As part of its services, Asurion provides technological support and repair services for the world’s leading mobile carriers, retail companies, and other businesses, enabling subscribers and customers to fully utilize their digital devices, applications, and equipment. Asurion is an employer as defined by the FCRA. See § 760.02(7), Fla. Stat. Petitioner was employed as a Service Advisor with Asurion’s Service Operations Program beginning on March 27, 2017. Essential job functions of the Service Advisor role include: the ability to utilize active listening skills and troubleshoot resolutions; the use of proper tone in providing information to customers and service providers; and the ability to resolve escalation and complaints, among other things. As a Service Advisor, Petitioner was responsible for working and negotiating with Asurion’s network of service providers to ensure a high level of customer satisfaction in their repair experience. Service Advisors are trained during their first week of employment, and thereafter, can access online training tools at any time during their employment. When hired, Petitioner received an electronic copy of Asurion’s Employee Handbook which contains, inter alia, Asurion’s equal opportunity employment policy prohibiting “discriminat[ion] against applicants or employees on the basis of … physical or mental disability….” The Employee Handbook also outlines Asurion’s Reasonable Accommodation policy, Attendance policy, and Customer Relations and Professional Behavior policy. During her early months of employment with Asurion, Petitioner established a reputation as a quick learner, and was eager to acquire new knowledge and skills, while maintaining a keen sense of awareness to detail. Petitioner was trained in several different departments at Asurion, and was willing to work during the holidays. During the first several months of her employment, Petitioner earned a number of accolades for quality work, including being recognized as employee of the month for December 2017. Field service managers would often recognize Petitioner’s hard work. Due to the quality of her work, Asurion auditors would frequently reach out to Petitioner and compliment her on her work. Sometimes agents from other teams would congratulate Petitioner on her work, since it made their jobs easier. On one occasion, a customer even wrote a letter to Asurion reporting the “impeccable” service they had received from Petitioner. In June of 2017, Petitioner witnessed a colleague being bullied by another colleague. The victim of this incident was crying at her desk, which made Petitioner believe that this treatment needed to be reported to her superiors. Petitioner reported the incident to her supervisor, Marie Alter. A few months later, Petitioner was reassigned to another department. On another occasion (July or August 2017), Supervisor Megan Bass confided in Petitioner her dislike for Petitioner’s African-American colleague, Ebony Shipman. Ms. Bass slandered Ms. Shipman to Petitioner, alleging that Ms. Shipman almost hurt Ms. Bass’s chance for promotion. On October 14, 2017, Petitioner and her four-year-old daughter were the victims of a violent and brutal physical attack. Following the attack, Petitioner began to display signs of mental illness, and as a consequence, began seeing a mental health counselor. This illness was diagnosed as Post Traumatic Stress Disorder (“PTSD”). Approximately three months following the October 2017 incident, Petitioner experienced a second traumatic event, which further compounded her PTSD. In an effort to continue her ability to function at work, Petitioner requested accommodations for her PTSD condition. Specifically, Petitioner requested on different occasions to have additional paid breaks during her shift, to be moved to a team that did not handle customer escalation calls, and to have intermittent leave under the Family and Medical Leave Act (“FMLA”). As a result of this request, Petitioner was approved for three 10 to 15 minute unpaid breaks. In early 2018, Petitioner witnessed harassment and discrimination towards disabled colleagues, and other colleagues. Being subjected to this inappropriate behavior triggered Petitioner’s PTSD, and so she requested a one-on-one meeting with her then-manager, Nestor Lebron, in February of 2018 to discuss her discomfort with her working conditions. At hearing, the work culture at Asurion’s Command Center was described by former and current employees as toxic and unprofessional. In addition, some employees were treated more favorably by supervisors than others. The consistency of their description of the dysfunctional workplace lends credibility to their testimony. In March or April 2018, Petitioner requested to work from home as she was becoming extremely sensitive working in a hostile work environment in which she felt she and her colleagues were being targeted for harassment. Even though Asurion had many work-at-home agents, Petitioner’s request was initially denied. On April 12, 2018, Petitioner met with Lauren Welch from Human Resources to discuss her requested work-at-home position. In this meeting, Petitioner discussed her troubling observations of the activities going on in the Command Center, including the unfair and unequal treatment that Petitioner had observed in that workplace. During this meeting, Petitioner offered to provide Asurion with medical documentation of her PTSD illness to assist with her work-at-home approval. Ms. Welch advised that documentation was not necessary. During the meeting of April 12, 2018, Petitioner made her first of many requests to be transferred to the SST Team, working with the Parts Department. Petitioner had worked on this team previously and had found it to be less stressful. Petitioner was not reassigned to this department, but subsequently learned that other agents, including Beverly Miller, Ray Legliter, and Mary Henderson, were all moved to that department following Petitioner’s request. While Petitioner was not approved for transfer to the Parts Department, her request to work from home was approved, effective April 30, 2018. Petitioner discussed her medical condition with her supervisor, Marie Alter, during a one-on-one meeting on May 11, 2018. During her first month of working from home, Petitioner was falsely accused by Ms. Alter of performing certain unprofessional actions. While Petitioner consistently maintained that she had not acted inappropriately, Ms. Alter did not relent in her accusations. Understandably, these unfounded accusations reinforced Petitioner’s belief that she was being targeted for harassment. On June 15, 2018, Petitioner received a “Final Warning” following her telephonic interaction with an employee of a contracted service center. As Petitioner explained at hearing, “I was mistreated by an employee that was contracted through Defendant. This employee works with Defendant to repair appliances. This woman was being argumentative and refused to provide the answers I needed to perform my work.” In response to the verbal abuse she was receiving, Petitioner disconnected the call. The Final Warning noted that “Your tone overall became curt, short and very defensive.” Petitioner acknowledged that she could have done a better job de-escalating the situation, and requested that she be approved for additional training, including listening in on other escalated calls. In response to Petitioner’s request for some kind of plan to help strengthen her performance in an area she struggled with, an Action Path meeting was created with Supervisor Marie Alter on June 25, 2018, for every Monday. The first meeting was scheduled for July 2, 2018, and in a follow-up email from Ms. Alter, it was explained that the meetings over the next couple of months would focus on improving Petitioner’s communications with providers and customers. However, on July 9, 2018, Petitioner’s Action Path was cancelled, without explanation. Petitioner made ongoing efforts to clearly communicate to Asurion the effects of her PTSD on her mental condition, and the impact that stress had on exacerbating her condition. Although Petitioner had made several requests to listen to a call where an agent successfully de-escalated an escalated client, she was advised Asurion could not locate any. However, in July 2018, quality analysts graded a call in front of the entire Command Center of an African-American woman, Tangia Carter. Ms. Carter received a score of 10 out of 100. No effort was made to hide the identity of the employee being graded. The employee was humiliated and embarrassed as a result. Petitioner reported this incident to her supervisor. In July 2018, another agent disconnected a call with a customer. The agent, Josh Johnson, had the same supervisor as Petitioner at the time Petitioner received her Final Warning for the same offense. However, unlike Petitioner, Mr. Johnson did not receive a Final Warning for disconnecting the call. On August 20, 2018, Petitioner sent an e-mail to Human Resources’ employee Logan Durham advising that the training verbally promised to Petitioner had not been provided. Petitioner also advised Mr. Durham that her request to listen to phone calls of highly escalated customers in an effort to better understand tone and effectively de-escalate customers had not been approved. In a September 11, 2018, Zoom meeting with Tiffany Trevino of Human Resources, Petitioner made another request to listen to highly escalated calls to gain a better understanding of tone and how to de-escalate customers effectively. Petitioner had come prepared to the meeting with concerns to discuss. However, Ms. Trevino would not allow Petitioner to speak, and asked her not to read her notes. After the meeting, Petitioner e- mailed her notes to Ms. Trevino so that it was documented that Asurion had been made aware of her concerns. Seven days following Petitioner’s conversation with Human Resources requesting that she be transferred to a less escalated team, an opportunity opened up in the Command Center. Specifically, on September 18, 2018, there was an opening on the SPT Team. This team is lower in escalations as the customers are rarely contacted, and agents only make recommendations of how to proceed with a claim. Rather than transferring Petitioner to the now-available lower-stress position, Asurion added required qualifications it knew would render Petitioner ineligible for the position. Those requirements were that an agent could not be on any corrective action (Petitioner was on a final written warning); the agent must work “brick and mortar” (Petitioner worked from home); and the agent must be performing well in quality metrics (the only area Petitioner needed improvement on was her quality metrics). The OEM Team, which is another low stress team that communicates primarily via e-mail, was created around the same time. On September 24, 2018, an e-mail was sent from Supervisor Megan Bass advising of the creation of the team, however, Petitioner was not included on the e-mail. In October 2018, Christina Oregon, another agent who had disconnected a customer call (requiring corporate involvement), was promoted to the SPT Team. On November 14, 2018, and again on January 23, 2019, Petitioner made additional requests to Human Resources for permission to listen to highly escalated calls in order to improve her de-escalation skills. In response to these requests, Petitioner was advised by Ms. Trevino that this request could not be considered training. When Petitioner again asked about being transferred to a lower-stress team, Ms. Trevino advised Petitioner that she would have to apply for the position the same way people without a disability would have to. Ms. Trevino made this statement to Petitioner even though she knew Petitioner was ineligible due to the final written warning she had received. In September of 2018, Petitioner sent in a task to be reviewed by the Audit Department. The claim was incorrectly worked by another agent, and had left a senior citizen without a working refrigerator for two weeks. Going against the company's best interest, as well as the customer’s, Supervisor Megan Bass retaliated against Petitioner, advising that the delayed process this agent took was in fact correct. Normally, when something is sent to the Audit Department, the claim is handled from there. It was not protocol to send it back to the agent who sent it in. It was Petitioner’s responsibility to report any issues she observed with workflow, and Ms. Bass’s response to Petitioner’s legitimate concern with customer service served to further harass Petitioner. Petitioner provided numerous examples of being ignored by her supervisors when requesting assistance with customer complaints and workflow concerns. In contrast, her colleagues were receiving immediate assistance from the leadership team in addressing their concerns. For example, on November 22, 2019, a customer Petitioner was working with requested to speak with a supervisor, but Petitioner was advised that none were available to assist. Throughout the duration of this claim, no supervisor called this customer back. Later, Petitioner was reprimanded for not offering the customer a gift card for his inconvenience. When Petitioner expressed her dismay about supervisors not returning calls to customers, she was again met with a reprimand for offering the customer a supervisor callback. Petitioner’s actions were correct, and were consistent with the training she had received on the company’s operating procedures. The hostile working conditions described above resulted in Petitioner experiencing a debilitating panic attack, leaving work early, and visiting a hospital emergency room on November 26, 2019. This panic attack affected Petitioner’s ability to think clearly and function normally. Pursuant to Asurion’s policy, Petitioner reported her absence from work to the AbsenceOne system, from the emergency room. The AbsenceOne system automatically notifies Asurion, including Petitioner’s supervisors, of absences via e-mail. The following morning, with the panic attack continuing, Petitioner was able to collect herself enough to explain what had happened to her supervisor, TJ Mark. In response, Petitioner received a final written warning for not contacting her supervisor immediately upon her absence from work. On April 28, 2020, Petitioner’s first day back from a week-long panic attack episode triggered by Asurion’s hostile work environment, Petitioner was terminated by Respondent for “not showing empathy” on a call. This is the area in which Petitioner had repeatedly requested additional training, or alternatively, reassignment to a lower escalated team which did not require direct customer contact. Petitioner had been belittled by this customer after issuing a denial for physical damage to his ice bucket. Per the service agreement, Asurion does not cover any failure caused by physical damage, intentional or otherwise, a result the customer was not willing to accept. Again, Petitioner’s actions on the call were consistent with her training, and were appropriate. As Petitioner credibly testified at hearing: The customer was clearly argumentative and I kept repeating, have a nice day, as I did not want to argue with him about what I was trained to do. Due to the rationale provided, I felt that I had made the best decision under the circumstances. Honestly, I was going to be retaliated against no matter what route was taken. If I offered a supervisor, I would have been in reprimand for offering a supervisor on a physically damaged ice bucket that did not affect the function of the ice maker. Following her termination, an e-mail was sent out to all employees in the Command Center advising of Petitioner’s termination and reason for termination. As a result of this email, approximately 200 employees were informed of the reason for Petitioner’s termination, which Asurion identified as “gross misconduct.” No other terminated Asurion employees were subjected to this form of public humiliation. The evidence credibly established that Petitioner was subjected to a hostile work environment, was not provided the reasonable accommodation she requested, and was retaliated against for engaging in protected behavior.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Annemarie Wolny’s Petition for Relief, as follows: Finding that Respondent, Asurion, engaged in a discriminatory employment practice based on Petitioner’s disability; Awarding Petitioner back pay from the date of termination; and Awarding Petitioner reimbursement for mental health services incurred as a result of Asurion’s misconduct. DONE AND ENTERED this 28th day of June, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annemarie Wolny W4598 County Road RR Random Lake, Wisconsin 53072 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Deadrick Thaxton Asurion Suite 300 648 Grassmere Park Nashville, Tennessee 37211 Casey M. Duhart, Esquire Waller Lansden Dortch & Davis, LLP Suite 2700 511 Union Street Nashville, Tennessee 37219
The Issue The issue is whether Petitioner's application for an initial license to operate an Assisted Living Facility should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensure dispute, Petitioner, Fosset Home for the Elderly, seeks an initial license to operate an Assisted Living Facility (ALF) in Jacksonville, Florida. In a preliminary decision issued on June 8, 1999, Respondent, Agency for Health Care Administration (AHCA), denied the application on the grounds that on April 8, 1998, Petitioner's owner had "pled guilty to operating an unlicensed [ALF] and [was] placed on 24 months' probation," and that her probation conditions prohibited her "from operating or maintaining an [ALF]." Petitioner denied the allegations and contended that its owner had met all terms of probation; that its owner had not been adjudicated guilty of the charges; that the denial was based on "erroneous facts"; and that AHCA had abused its discretion. Petitioner's owner is Shirley I. Fosset, a certified nursing assistant. Although the record is not altogether clear, it appears that several years ago, perhaps in 1994 or 1995, she assumed ownership of a licensed ALF known as Barlow Community Home in Jacksonville, Florida. It is undisputed that while operating that facility, Fosset was not cited for failing to adhere to AHCA regulations. Because the prior owner would not keep the facility's building in good repair, however, Fosset decided to move to a new location when it came time to renew the license, and to seek a new license under her own name. While seeking a new license, she continued to "knowingly" operate an ALF after her old license had expired. Sometime during the first half of 1997, but prior to June 19, 1997, Fosset was advised by AHCA to obtain a license within ten working days or else be subject to prosecution. Fosset then filed an application for licensure on an undisclosed date, but it was deemed incomplete because it lacked a legible fire marshal's report; zoning verification; sanitation and inspection reports; and a completed assets, liabilities, and statement of operation form. There were also unpaid license fees. Although she later submitted a legible fire marshal's report and paid the fees, the application was never determined to be complete and was therefore denied. On February 26, 1998, an information was filed by the Duval County State Attorney against Fosset charging that on June 19, 1997, she was operating an unlicensed ALF in Duval County, a third degree felony. On April 9, 1998, Fosset pled guilty to the charge, and adjudication of guilt was withheld. She was placed on supervised probation for 24 months, and one condition of probation prohibited her from "operating and maintaining an adult living facility" during her probationary period. According to Petitioner, her term of supervised probation was terminated on April 30, 1999, or prior to the original two-year period, and this was not contradicted. If this is true, then the condition that she not operate an ALF during her probationary period has also expired. The state attorney's office notified AHCA of Fosset's guilty plea by letter dated April 24, 1998. After receiving the letter, AHCA issued an Amended Administrative Complaint against Fosset on June 8, 1998, charging her with operating an unlicensed ALF. The parties eventually entered into a Joint Stipulation on July 7, 1998, wherein Fosset agreed to pay a fine, and a Final Order was entered on August 21, 1998, accepting the stipulation. On an undisclosed date in 1998, Fosset filed a second application for licensure. This application was preliminarily denied on May 20, 1998, on the ground she had "pled guilty to operating an unlicensed ALF." When no request for a hearing was made, a Final Order confirming this action was entered by AHCA on July 1, 1998. A third application was filed by Petitioner with AHCA on April 28, 1999, by which she again sought an initial license authorizing the operation of a five-bed ALF at 1244 Edgewood Avenue, West, Jacksonville, Florida. On May 25, 1999, the application was denied under Section 400.414(1)(m), Florida Statutes, on the grounds Fosset had pled guilty to operating an unlicensed ALF, and the terms of her probation prohibited her from operating such a facility. On June 8, 1999, AHCA amended its earlier letter and added Section 400.414(3), Florida Statutes, as an additional statutory ground for denying the application. The latter statute authorizes AHCA to deny an application whenever an applicant has been denied an application within the preceding five-year period. This controversy followed. Petitioner concedes that she operated a facility without a license after being told to cease operations, but she did so only because she did not wish to "throw [her clients] out on the street," especially since none of them had other family or another facility in which to be placed. Despite being well- intentioned, Fosset nonetheless violated the law by continuing to operate without a license. Petitioner also points out that she has attempted in good faith on no less than three occasions to obtain a license. However, the first application was denied for technical reasons (incompleteness), and there is no record evidence that all of the missing items were ever submitted. Her last two efforts were properly rebuffed because Petitioner had continued to operate an ALF without a valid license. Finally, there is no dispute that Petitioner desires a license because she is truly committed to assisting elderly persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order denying Petitioner's application for an initial license to operate an Assisted Living Facility. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of September, 1999. COPIES FURNISHED: William Roberts, Jr., Esquire 816 Broad Street Jacksonville, Florida 32202-4754 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
