The Issue The issue is whether the Respondent, Agency for Health Care Administration (AHCA), should pay the Petitioners attorney's fees and costs under section 57.111, Florida Statutes (2013),1/ the Florida Equal Access to Justice Act, for initiating DOAH Cases 10-0528, 10-1672 and 10-1673.
Findings Of Fact Avalon and Avalon II are licensed assisted living facilities (ALFs) in Orange County. In 2009, they were owned and operated by Robert Walker and Chiqquittia Carter-Walker. Each had no more than 25 employees and a net worth of not more than $2 million (making them small business parties under section 57.111). On December 4, 2009, AHCA filed an administrative complaint against Avalon (DOAH Case 10-0528). The administrative complaint alleged that Avalon was guilty of three Class II deficiencies, which are deficiencies that directly threaten the physical or emotional health, safety, or security of a resident. Count I alleged that Avalon falsified employee training documentation (cited as Tag A029) to deliberately misrepresent the level of information and skill possessed by a staff member. Count II alleged that Avalon failed to provide appropriate medication to a terminally ill resident (cited as Tag A427), resulting in unnecessary pain suffered by the resident. Count III alleged that Avalon failed to provide one resident with a prescribed nutritional supplement and two residents with appropriate pain-relieving medications, including the resident identified in Tag A427 (cited as Tag A700). Count IV alleged that the licenses of Avalon and Avalon II should be revoked under section 408.812(5), Florida Statutes (2009),2/ because they or their owners and operators ("controlling interests" under section 408.803(7)) operated a third, unlicensed ALF and because of a demonstrated pattern of deficient performance at Avalon. The first three counts of the administrative complaint were based on the results of an inspection (survey) of Avalon's facility completed on July 23, 2009. As to Count I, it was discovered during the inspection that training certificates for one Avalon staff member were not accurate and falsely indicated that the employee received required training, which the employee denied. Avalon disputed the employee's statement, offered explanations for some of the anomalies in the training certificates, and pointed out that Avalon still had time to provide some of the required training, but the employment was terminated before the time would have run out. Avalon also pointed to various mistakes and confusion in the survey report to attack its overall credibility. Nonetheless, the information in the survey report was a reasonable basis in fact to charge Avalon in Count I. Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violation alleged in Count I. As to Count II, the inspection revealed that a terminally ill resident, who no longer met the criteria for continued ALF residency, was allowed to remain in the ALF subject to the coordination of hospice care, the provision of additional medical services, and the development and implementation of an interdisciplinary care plan that adequately designated responsibility for the various kinds of care required by the resident. The inspection revealed that the resident did not receive medication for pain management, which had been authorized by the resident's physician, and suffered pain unnecessarily during the early morning hours of July 13, 2009. The inspection concluded that Avalon was responsible. Avalon disputed some of the findings in the survey report regarding this resident. Specifically, Avalon disputed statements in the survey report to the effect that there was no interdisciplinary plan in place and being implemented at the time. Avalon also contended that the allegations in Count II were based on inadequate investigation by unqualified personnel (i.e., not medical professionals), which resulted in a misunderstanding by the inspectors regarding how a hospice patient is treated in an ALF. The crux of the findings in the survey report and of the allegations in Count II was that Ms. Carter-Walker, who is a nurse and was the only ALF staff member authorized to administer medications to residents, as well as the administrator in charge of the ALF, had the facility's medication cart locked and made herself unavailable to authorize that it be opened during the evening hours of July 12 and early morning hours of July 13, 2009, resulting in the inability of anyone to administer the resident's pain medication for five hours when it was needed by the resident, as ordered by the resident's physician. This was a reasonable basis in fact to charge Avalon in Count II of the administrative complaint (even if there may not have been a reasonable basis for each and every allegation in Count II). Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violation alleged in Count II. Count III of the administrative complaint repeated the allegation in Count II and added allegations regarding two other residents. One of the other two residents was alleged to have had a history of weight loss and been prescribed a daily can of "Ensure" nutritional supplement, but did not receive the supplement, as ordered, because the facility had not obtained or provided it to the resident. Avalon contended that there were no medical records, facility records, or any other documentation submitted to substantiate the claim about the Ensure. It is true that the survey report did not include such supporting documentation, and no such supporting documentation was introduced in evidence in this case. However, the survey report indicates that AHCA staff reviewed Avalon's records on July 14, 2009, and that there was a health care provider order dated June 16, 2009, on file for one can of Ensure a day, and a Medication Observation Record showing none was provided to the resident in June or July. The report also indicates that Ms. Carter-Walker confirmed that no Ensure had been provided to the resident and telephoned the pharmacy to see if the pharmacy had received the order. This was a reasonable basis in fact to charge Avalon regarding the Ensure in Count III of the administrative complaint. The other resident mentioned in Count III was alleged to have had a history of hypertension and hypothyroid issues and to have been prescribed a daily Ibuprofen (400mg) for pain, but Avalon's medication records allegedly indicated that the medication had been provided to the resident twice on some days and not at all on other days. Avalon points out the vagueness of some of the evidence AHCA had to support this charge (namely, the statement of a former employee about an unknown date in June 2009 when the resident did not receive any pain medication), the confused and inconsistent testimony of AHCA's inspector and her supervisor as to the basis in fact for this allegation, and the absence of the medical records for this resident from the evidence introduced in this case. Nonetheless, the statements in the survey report reflecting that Avalon's records were reviewed by the AHCA inspectors were a reasonable basis in fact to include these allegations in Count III of the administrative complaint. Avalon complains that Count III repeated the allegations in Count II in order to combine with and elevate the other two deficiencies in Count III from Class III deficiencies to Class II deficiencies. While there may be no specific statutory or rule authority for doing so, Avalon does not point to any rule or statute prohibiting doing so, and AHCA had a reasonable basis in fact to take the position that the three alleged deficiencies, combined, were Class II. Section 429.19(2)(b) provided a reasonable basis in law to file an administrative complaint seeking to fine Avalon for the violations alleged in Count III. The allegation in Count IV of the administrative complaint that at an unlicensed facility was being operated by the owners and operators of Avalon and Avalon II on August 5, 2009, was supported by the report of an inspection (survey) of the facility on that day. As stated in the survey report, Mrs. Carter-Walker arrived and identified herself to the AHCA inspectors as the administrator of the facility. She was known to them as the administrator of Avalon and Avalon II, as well. It also was reported that she identified herself as the administrator of the facility to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and administrators at other local ALFs. In addition, according to the statements of an employee at the facility, there had been residents at the facility since at least June 16, 2009, which was when the staff member began to work at the facility. The employee worked providing resident services five days a week. According to the employee, there were always at least three residents in the facility, and the same residents were present on a day-to-day basis. There was no indication that those residents were transported out of the facility during the evening for some reason or that they did not otherwise remain in the facility overnight. A licensed practical nurse present at the facility on August 5, 2009, was the person who permitted the Agency's inspector to enter the facility. The nurse was there to provide personal care assistance to a terminally ill resident receiving care through an agreement between Mrs. Carter-Walker, as the facility's administrator, and hospice. After Mrs. Carter-Walker arrived at the facility, she appeared to the inspector to be unhappy that the nurse had permitted the inspector to enter the facility and directed the nurse to leave the facility. During the inspection on August 5, 2009, a "Notice of Unlicensed Activity/Order to Cease and Desist" was issued to Mrs. Carter-Walker and to Robert Walker, who arrived during the inspection and identified himself as an owner of the facility. At no time during the inspection on August 5, 2009, did Mr. Walker, Mrs. Carter-Walker, or anyone else say that the residents in the facility did not spend the night at the facility, that the residents had a familial relation to the owners, or that the facility was exempt from or otherwise not required to comply with relevant ALF licensing requirements. To the contrary, on August 14, 2009, Mr. Walker and Mrs. Carter- Walker applied for an ALF license for the facility to cure the violation. Avalon and Avalon II contend that there was no reasonable basis in fact and law for Count IV of the administrative complaint because Mr. Walker and Ms. Carter-Walker ceased and desisted as ordered by AHCA and applied for licensure. They cite to section 408.812(3) and (5), which they say subjected them to penalties only if they failed to cease and desist. AHCA contends that section 408.812(5) did authorize revocation and other disciplinary actions. AHCA also contends that section 429.14(1)(k) authorized revocation or suspension and fines. AHCA's arguments are reasonable. Avalon and Avalon II point to section 408.832, which provides that chapter 408 prevails over chapter 429 in the case of a conflict. However, it is reasonable for AHCA to argue that there is no irreconcilable conflict between section 408.812(3) and (5) and section 429.14(1)(k). AHCA's legal arguments persuaded Judge Quattlebaum, whose conclusions of law in that regard were not addressed by the appellate court in reversing the final order that adopted them. For these reasons, the survey report for the inspection on August 5, 2009, provided a reasonable basis in fact and law for this allegation in Count IV. Count IV also alleged a demonstrated pattern of deficient performance by Avalon between 2007 and 2009, as reflected in the attached survey reports. These survey reports indicated that Avalon had numerous lesser deficiencies during that time period. As pointed out by Avalon, not everything listed in these surveys indicated an actual deficiency, and all the earlier deficiencies presumably were corrected. Nonetheless, the survey reports were a reasonable basis in fact to charge Avalon with a continuing pattern of inadequate performance and a failure to meet relevant standards. In addition, section 429.14(1)(e)2. authorized fines and revocation, suspension, or denial of a license for three or more Class II deficiencies and was a reasonable basis in law to charge Avalon in Count IV. AHCA gave notice of intent to deny the license renewals for Avalon and Avalon II because of the unlicensed operation of an ALF and because their licenses were "under revocation." The first ground has been addressed. As to the latter, Avalon and Avalon II contend that there was no reasonable basis in fact and law because no final action revoking their licenses had been taken. However, the pending administrative complaint to revoke their licenses was a reasonable basis in fact and law to give notice of intent not to renew them.
The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should renew the assisted living facility (ALF) and limited nursing services (LNS) licenses held by Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon), and whether AHCA should fine Avalon for alleged statutory and rule violations.
Findings Of Fact Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon) holds a biennial assisted living facility (ALF) and limited nursing services (LNS) license issued by AHCA. Avalon's ALF is in a residence at 1250 Willow Branch Drive in Orlando, Florida. It has a licensed capacity of six beds. There are six bedrooms in the residence. Four are designated as "licensed" on the ALF's floor plan. Two bedrooms are designated as "unlicensed." In February 2013, Avalon applied to AHCA to renew its license for the years 2013 through 2014.3/ In July 2013, AHCA conducted a biennial survey to determine whether Avalon's license should be renewed. Several deficiencies were noted, including: Tag A0007, Class III, admitting a resident who was ineligible due to inability to transfer from bed to wheelchair with assistance; Tag A0008, Class III, a missing AHCA Form 1823 health assessment; Tag A0009, Class IV, failure to have a resident sign a contract for six months after admission; Tag A0030, Class III, using bedrails without a doctor's order to confine a resident in bed; Tag A0076, Class III, not having a written policy requiring staff to immediately contact hospice if a resident receiving hospice services suffers cardiopulmonary arrest; Tag A0083, Class III, not having documentation that staff on duty had current CPR and first-aid training; and Tag A0162, Class III, not having documentation of a resident's informed consent as to whether a nurse would oversee Avalon's assistance with self-administration of medication. Avalon did not take issue with the deficiencies or classifications at the time and took prompt action to correct them.4/ In September 2013, AHCA conducted a follow-up survey, which disclosed that the deficiencies noted in July 2013 were corrected or no longer existed. As a result, Avalon was not fined for those deficiencies. However, during the follow-up survey, it came to the attention of AHCA that an individual, identified by his initials, R.M., to preserve confidentiality, went missing from an ALF operated nearby at 13230 Early Frost Circle by Avalon's Assisted Living II, LLC, d/b/a Avalon's Assisted Living II (Avalon II). Avalon and Avalon II had the same administrator, Chiqquittia Carter-Walker, who had a controlling interest in both facilities. R.M. could not be found despite an all-out police search. As a result, AHCA initiated a complaint investigation and declined to grant Avalon's renewal application pending completion of the investigation.5/ In October 2013, while the September 2013 incident was being investigated, another apparent deficiency came to the attention of AHCA's surveyors. They noticed that an 81-year-old resident of Avalon's ALF, who is identified by her initials, D.D., to preserve confidentiality, had metal surgical staples in her scalp from her forehead to the crown of her head. There appeared to be dried blood around the staples. At about this time, Avalon's administrator, Mrs. Carter-Walker, observed that D.D. was unable to transfer from bed to wheelchair, which was not normal for her, and appropriately decided to arrange for the resident to be taken to the hospital by ambulance. Further investigation into the metal staples revealed to the surveyors that they had been placed in the resident's scalp when she was hospitalized in July 2013 for medical attention to a head wound incurred when she fell while a resident of Avalon. AHCA initiated a complaint investigation into the reason why the staples remained in the resident's scalp for three months, which became another reason for AHCA's denial of Avalon's renewal application pending completion of the investigation. September 2013 Complaint Investigation Regarding R.M. The R.M. investigation resulted in six alleged deficiencies: Tag A025 (Resident Care - Supervision), Class II, inadequate resident care and supervision; Tag A0004 (Licensure - Requirements), unclassified, placing R.M. in an unlicensed room and/or exceeding licensed bed capacity at Avalon's ALF; Tag A077 (Staffing Standards - Administrators), Class III, inadequate supervision of the ALF by the administrator; Tag A079 (Staffing Standards - Levels), Class III, inadequate staffing for the residents, including R.M.; Tag A160 (Records - Facility), Class III, not listing R.M. as a resident on the admission/discharge log; Tag A167 (Resident Contracts), Class III, not having a resident contract for R.M.; Tag A190 (Administrative Enforcement), Class III, having staff not cooperate with AHCA's investigation; and Tag AZ815 (Background Screening; Prohibited Offenses), unclassified, letting Robert Walker provide personal care or services directly to R.M. after being arrested and awaiting disposition on several felony charges. Essential to all of the charges arising out of the September complaint investigation is R.M.'s alleged status as a resident. Avalon's position is that he was a non-resident renter of one of the unlicensed beds, not a resident of its ALF. Avalon's first contact with R.M. was through the discharge staff at Florida Hospital, where he had been admitted after being involuntarily committed under the Baker Act. After telephonic communication about whether Avalon could accept R.M. as a resident in its ALF, Mrs. Carter-Walker and her husband, Robert Walker, went to the hospital on July 19, 2013, to meet Mary Loftus, a social worker on the hospital's discharge team, and R.M. At the time, Mr. Walker had pending felony charges that disqualified him from working at the ALF or having direct contact with residents.6/ During the meeting, R.M. was cooperative, pleasant, with euthymic (normal) mood and constricted affect, and some confusion in thought process. R.M.'s participation ended when he agreed to go to Avalon's ALF and stated he would look forward to seeing Mrs. Carter-Walker and her husband on the following Monday. The social worker then further discussed the discharge plan with Mrs. Carter-Walker and her husband and noted R.M.'s "exit-seeking behavior" upon admission at the hospital - meaning, he would try to leave the hospital without being discharged. They also discussed finances, including R.M.'s $1,400 a month Social Security benefit and possible eligibility for Veteran Administration benefits, and R.M.'s nearest relatives, his foster "son" and his "daughter-in-law," Jacqueline Renea Fulcher, who lived in Polk County. The social worker then telephoned to arrange for Mrs. Fulcher also to be at the hospital for the planned discharge. When Mrs. Carter-Walker and her husband arrived at the hospital for the discharge on July 23, 2013, they were given an AHCA Form 1823, signed by R.M.'s psychiatrist the day before. The form stated R.M.'s needs could be met in an ALF that is not a medical, nursing, or psychiatric facility. The form stated that R.M. was born in 1934, had dementia, was forgetful, required fall precautions, required daily observation for his well-being and whereabouts, and required daily reminders for important tasks. The form also listed R.M.'s medications, including 81 mg aspirin, 10 mg simvastatin, 25 mg sertraline, and 50 mg hydroxyzine hydrochloride. The form stated that R.M. did not need help with taking his medications and could use a pill box. The form stated that R.M. could make phone calls independently and could prepare meals, shop, and handle personal and financial affairs with assistance. From the discussions and Form 1823, it was clear to the Florida Hospital discharge team that R.M. was being discharged to Avalon's ALF.7/ This also was the clear understanding of Mrs. Fulcher. She had asked for a letter signed by R.M.'s psychiatrist to use when they went to the bank to access R.M.'s funds to pay for the ALF. She thought she would need it to explain to bank officials in the event R.M. acted out. She understood that is what happened when staff of R.M.'s previous ALF, Sunrise, took him to the bank to access his funds, which resulted in his involuntary commitment and admission to Florida Hospital on July 3, 2013. The letter she received stated that R.M. was diagnosed with dementia disorder with behavioral disturbances and mood disorder and was unable to make decisions for daily living. R.M. was discharged to Avalon's ALF on July 23, 2013. Mrs. Carter-Walker and her husband drove to Florida Hospital to pick R.M. up and drive him to the ALF. R.M. got into the vehicle with them, and Mr. Walker drove.8/ Mrs. Fulcher followed in her car. They made a stop at a Walmart to get clothing for R.M. While Mrs. Fulcher was parking her car, the other vehicle parked, and R.M. jumped out and walked quickly or ran into the store, away from Mrs. Carter-Walker and her husband. Mrs. Fulcher went into the store after R.M., who seemed agitated and did not seem to know or trust them. Mrs. Fulcher tried to calm him down and explain the situation to him. It was decided that R.M. should continue on in Mrs. Fulcher's car. They then stopped at a bank to try to access R.M.'s funds to pay Avalon, but they were unsuccessful in doing so because they did not have acceptable identification for R.M. From there, they continued on to Avalon,9/ where Mrs. Fulcher was shown the room R.M. would be staying in, and they discussed R.M.'s medications, which Mrs. Carter-Walker said she would obtain from the pharmacy, and his identification, which Mr. Walker said he would retrieve from Sunrise ALF. The next day, Mrs. Fulcher was supposed to return to the bank with R.M. and his identification to obtain funds to pay Avalon, but she had a family medical emergency and had to fly to Virginia, where she remained for two weeks. When she returned, she tried to contact Avalon by telephone and left messages but did not get a call back from Avalon. On August 22, 2013, R.M. signed a document making Mrs. Carter-Walker his Social Security benefit payee, and she began receiving his Social Security benefits at Avalon. At some point in time, she generated statements showing that Avalon was charging R.M., as "tenant," $774.10 as rent for July 2013 (at the monthly rental rate of $2,000, prorated), and $2,400 for August and September 2013 (at the monthly rental rate of $2,400). While AHCA surveyors were at Avalon on Willow Branch Drive on September 11, 2013, conducting a follow-up survey on the deficiencies noted in July 2013, they learned that R.M. had walked away from Avalon II's ALF on Early Frost Circle, refused to come back when asked by the sole staff on duty at the time, did not return, and could not be found despite an all-out police search. Avalon's staff denied having any knowledge about R.M. and deferred all questions to Mrs. Carter-Walker. Mrs. Carter- Walker took the position that R.M. was not a resident of Avalon. She testified that she conducted her own assessment of R.M. and, without notifying either Florida Hospital or Mrs. Fulcher, determined that he did not require the services of an ALF but could be an independent renter of one of Avalon's unlicensed beds. She showed surveyors a pillbox she said R.M. used independently for his medications. The position taken by Avalon as to R.M.'s status is inconsistent with clear and convincing evidence to the contrary. Myrtus Furbert was the sole staff on duty at Avalon II on September 10, 2013. She testified that R.M. spent the previous night there, having been brought there by Mrs. Carter-Walker with a bag of clothing, but no medications. When Ms. Furbert asked about his medications, Mrs. Carter-Walker told her he had no medications because Avalon was not being reimbursed for them. R.M. had no cell phone, wallet, or personal or ALF identification because Mrs. Carter-Walker did not trust him not to lose them. He also did not have a key to either Avalon on Willow Branch Drive or Avalon II on Early Frost Circle. When R.M. absconded, Ms. Furbert notified Mrs. Carter-Walker, who notified the police, essentially following Avalon's elopement policy for ALF residents. Ms. Furbert also testified convincingly that she and other staff were instructed by Mrs. Carter-Walker to be cautious about discussing potential deficiencies with surveyors and to defer those kinds of questions, and in particular questions regarding R.M., to her. Consistent with that testimony, staff at Avalon told AHCA's surveyors that they knew nothing about R.M., and Ms. Furbert was not forthright initially when questioned about him. Mrs. Carter-Walker testified, and Avalon took the position, that staff did not know anything about R.M. because he was an independent boarder, not an ALF resident. Her testimony and Avalon's position are rejected as implausible and contrary to the clear and convincing evidence to the contrary. R.M. was a resident of Avalon's ALF, notwithstanding Avalon's position to the contrary and its failure to give him the services he should have had. The facts alleged in the deficiency tags arising out of the September 2013 complaint investigation were proven by clear and convincing evidence. October 2013 Complaint Investigation Regarding D.D. Avalon gave excuses for not having the metal staples removed from D.D.'s scalp for over three months. Mrs. Carter- Walker testified that the doctor who came monthly to Avalon's ALF stopped accepting D.D.'s insurance and that she tried to telephone D.D.'s son to get the name of her doctor, got no answer at first, and later talked to him and learned that D.D. had no other doctor. She testified that she then asked the Florida Hospital doctor who placed the staples to remove them, but that doctor declined. She testified that she did not take D.D. to a walk-in clinic or emergency room to have the staples removed because D.D.'s son had a durable power of attorney, and he would have to be present to authorize the removal of the staples. D.D.'s son did not recall getting any telephone calls from Mrs. Carter-Walker before October 10, 2013, and that he first learned about the staples when he went to Florida Hospital the next day. His testimony was clear and convincing and is accepted. Her testimony was self-serving and is rejected, if it was intended to mean that she took appropriate steps to notify the son about the staples and ask him to give consent to have them removed prior to October 10, 2013. The evidence was clear and convincing that it was inappropriate medically for the staples to remain in D.D.'s scalp for three months. Although there was no clear and convincing evidence that the staples caused an infection or that skin grew over them so as to require additional surgery to remove them, both were possible results from leaving the staples in too long. D.D.'s son relied on Avalon to care for his mother. Avalon should have taken appropriate steps to have the staples removed before October 10, 2013. Pattern of Deficient Performance The tags noted in the July 2013 re-licensure survey reflect several relatively minor deficiencies, some little more than paperwork deficiencies, which were corrected promptly. They do not, in themselves, reflect a pattern of deficient performance. The tags from the September 2013 complaint investigation involving R.M. arose from an isolated incident, in that there was no evidence that any resident eloped before or since. However, the tags include more than just an elopement. The deficiencies actually arose from a decision by Mrs. Carter- Walker, whether before or after the elopement, not to treat R.M. appropriately as an ALF resident or provide the ALF services he should have been given, while she and Avalon collected R.M.'s Social Security benefits intended to pay for those services. Avalon's decision was not disclosed to Florida Hospital, to Mrs. Fulcher, or to AHCA. This decision contributed to R.M.'s ultimate elopement. When Avalon's actions were disclosed through R.M.'s elopement, Mrs. Carter-Walker attempted to manage the consequences through her instructions to her ALF staff not to provide certain information to AHCA's surveyors, except through her. The tags from the October 2013 complaint investigation involving D.D. arose from an isolated incident, in that there was no evidence that any resident was medically neglected before or since. However, these deficiencies also arose from a decision by Mrs. Carter-Walker not to provide the ALF services D.D. should have been given. D.D.'s son, who was her health care surrogate, was not kept apprised of D.D.'s medical condition or asked to cooperate in having the metal staples removed from his mother's scalp. Avalon also did not disclose metal staples to AHCA directly or by making reference to them in D.D.'s ALF records. AHCA happened to become aware of them when its surveyors happened to notice the staples while they and Mrs. Carter-Walker were attending to D.D. for an apparent change in her medical condition that occurred while a survey was being conducted. When the staples were noticed and investigated, Mrs. Carter-Walker and Avalon attempted to avoid responsibility by blaming D.D.'s son and her Florida Hospital doctor. The tags arising out of the R.M. and D.D. investigations, while relatively small in number, reflect a troubling pattern of deficient performance involving inadequate supervision and lack of appropriate attention to the needs of ALF residents, together with attempts to hide the deficient performance from family members and AHCA, and the development of an unhealthy relationship with the AHCA surveyors and regulators that has resulted in a mutual lack of trust. Avalon III Amended Final Order Mrs. Carter-Walker had a controlling interest in Avalon and in Avalon III, which applied for a license to operate an ALF at a third location in Orlando. AHCA gave notice of intent to deny the application for licensure on several grounds, including: unlicensed operation of an ALF at 1812 Crown Hill Boulevard in Orlando in July and August 2009; expiration of the applicant's lease on the facility to be licensed; and the disqualification of Mr. Walker, who was a controlling interest, administrator, and financial officer on the application. Avalon III requested a hearing, and a Recommended Order of Dismissal was entered on the ground that Mrs. Carter-Walker and Mr. Walker took the Fifth and declined to answer discovery questions relevant to the grounds for denial of Avalon III's application. As a result, Avalon III essentially chose not to meet its burden to prove entitlement to licensure. The Recommended Order of Dismissal was adopted in an Agency Amended Final Order. Avalon III appealed, and the First District Court of Appeal issued a per curiam affirmance on December 17, 2014. Avalon, etc. v. AHCA, Case 1D13-5972, per curiam aff'd (Fla. 1st DCA Dec. 17, 2014). There was no request for rehearing, and the Mandate issued on January 5, 2015. Id.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order denying Avalon's license renewal application and fining Avalon $5,500. DONE AND ENTERED this 21st day of January, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 21st day of January, 2015.
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner as a physical education teacher at Homestead Junior High School pursuant to a continuing contract. On May 17, 1984, Assistant Principal Woodward sent a memorandum to Respondent regarding Respondent's late notification for absence from duty two days prior. That memorandum read, in pertinent part: I feel that it is essential that I again remind you of the problems caused by your late notification of the need for a substitute. Subs are difficult to get in the morning after the high schools have begun their day. Last year Mr. Rosbaugh covered a portion of your 1st period class at least 15 times. This year you have been out 10 1/2 days in addition to the entire month of December (12 days) and 9 days in January due to injury. You also have arrived late to homeroom on a number of occasions. Please direct your attention to these professional matters. During the 1986-87 school year Respondent was absent approximately 30 days. In addition, Respondent's department head reported him for being tardy 13-15 times although Respondent was tardy on even more occasions. During the 1987-88 school year between the commencement of school in August and December 9 when Respondent was suspended from employment he was absent from school approximately 60 days, 53 of which were leave without pay. He was also tardy approximately 15 times. Because Respondent failed to notify the school when he expected to be tardy and because he repeatedly failed to notify the school when he would be absent, school personnel did not have time to obtain the services of a substitute teacher. Therefore, other teachers had to cover Respondent's physical education classes in addition to covering their own, thereby lessening the safety of the students in those physical education classes. At all times, Respondent's students were left running unsupervised in the hallways, thereby impacting other classes and other students' safety. Respondent's department head discussed the problem with Respondent on numerous occasions during both the 1986-87 and the 1987-88 school years. He gave Respondent verbal directives to be prompt for all his classes since Respondent would be tardy not only for the first period class but would also disappear between periods and be tardy at the beginning of other periods. School personnel had no telephone number for contacting Respondent. During the 1986-87 school year Respondent's department head went to Respondent's home on four or five different occasions to see if Respondent was coming to work since the school day had already begun and Respondent was absent. He also went to Respondent's home for the same purpose two or three times during the 1987-88 school year. Each time he went to Respondent's home, he found him asleep. During the 1986-87 and 1987-88 school years Assistant Principal Woodward had meetings with Respondent on approximately 30 occasions to discuss Respondent's chronic lateness in reporting to work. He also went to Respondent's home after the school day had begun to find out if Respondent would be coming to school that day six or seven times during 1986-87 and two or three times during 1987-88. On one such occasion--March 12, 1987--he went to Respondent's home and awakened Respondent at 10:30 a.m. Assistant Principal Woodward directed Respondent on numerous occasions to observe the school's required procedures for notifying the school of Respondent's absences or tardiness. Each time Respondent was awakened at his home by school personnel, he was very apologetic, promised to do better, and stated that he fully understood the required procedures and the impact on his classes. Each time, he explained that he had overslept and that he had personal problems. Although Respondent promised improvement, no improvement occurred. On a number of occasions Assistant Principal Woodward recommended that Respondent contact the employee assistance program due to Respondent's stated problems with oversleeping and Respondent's repeated advice that he had personal problems and since Woodward noticed that Respondent was losing weight and evidencing some differences in personality. However, Respondent refused to contact the employee assistance program. Principal Chandler had numerous conferences with Respondent both years formally and informally regarding his absences and tardiness. He offered Respondent transportation to school even though Respondent lived only a few blocks away. Respondent declined his offer of transportation. Principal Chandler visited Respondent at Respondent's mother's home at Respondent's request three times during 1987-88. He also had a meeting with Respondent and some of Respondent's associates with whom he was experiencing problems with paternity charges. Based upon Respondent's continued failure to comply with reporting procedures, and based upon Respondent's repeated excuse that he overslept and/or had personal problems, and based upon Respondent's statements made to him during one of the meetings at Respondent's mother's home, Chandler requested Respondent to undergo a fitness examination which Respondent refused. Based upon Respondent's refusal to undergo a fitness examination and Respondent's refusal to comply with the directives to be punctual and to comply with reporting requirements, Chandler contacted the Office of Professional Standards of the Dade County Public Schools. An official conference for the record was scheduled for November 3, 1987, and Respondent failed to appear. A second conference for the record was scheduled for November 18, 1987, and Respondent attended that conference. Respondent was requested to sign the notice acknowledging that he had been notified of the conference he was attending, and he refused to acknowledge receipt of that notice Respondent was ordered to undergo a fitness determination, and he refused to comply. On November 18, Respondent was assigned to his home, thereby terminating his assignment to Homestead Junior High School. On November 23, he was assigned to the Area Office but he refused to report to the Area Office. On December 1, 1987 he was temporarily assigned to Arvida Junior High School. However, he indicated he had transportation problems and could not report there. On December 2, he again indicated that he had transportation problems and again would not report there that day. On December 3, he again indicated that he had transportation problems and that he could not accept the assignment on that day or any other day. Respondent's absences exceeded the amount of accumulated leave and sick leave during both 1986-87 and 1987-88. Respondent never indicated to any of his superiors that he was unable to comply with the directives to improve his attendance and correct his tardiness. Respondent never indicated that he was sick; rather, he continuously maintained that his problem was simply a matter of oversleeping resulting from his personal problems. Accordingly, the extended sick leave provisions in the union contract between the teachers in Dade County and Petitioner do not apply to Respondent. Even if they did, there are no provisions in that contract which permit a teacher to continually be tardy for that teacher's first period class and to disappear between classes and report for the next class 10 or 15 minutes late as was Respondent's pattern of behavior. Petitioner has exhausted all available resources in its attempt to assist Respondent, and there is no expectation of improvement on Respondent's part. Respondent's effectiveness as a teacher has been impaired by his failure to be in regular and punctual attendance for his assigned duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent from his employment with the School Board of Dade County and denying him any claims for back pay and benefits. DONE and RECOMMENDED this 9th day of August, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 9th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5596 Petitioner's proposed findings of fact numbered 1 has been adopted in this Recommended Order. Petitioner's proposed findings of fact numbered 2-16 have been rejected as not complying with Rule 22I-006.31(3), Florida Administrative Code, and also as not constituting findings of fact but rather as constituting recitation of the testimony. Respondent's proposed findings of fact numbered 1 and 2 have been adopted in this Recommended Order. Respondent's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 4 and 5 have been rejected as being subordinate to the issues under consideration herein. Respondent's proposed findings of fact numbered 8 and 17-19 have been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 12, 14, and 15 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6, 7, 9-11, 13, 16, and 20 have been rejected as not constituting findings of fact but rather as constituting either recitation of the testimony or argument of counsel. COPIES FURNISHED: Joseph A. Fernandez, Superintendent Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Johnny Brown, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129
The Issue The issue in this case is whether Respondent, Gulf Coast Enterprise (GCE), discriminated against Petitioner, Terry R. Douglas, based on his race--African-American--or his disability-- hearing impairment.
Findings Of Fact Petitioner, Terry R. Douglas (Douglas) is an African- American male. He is hard of hearing and uses hearing aids (when he can afford the batteries) and relies upon interpretive sign language when it is available.1/ At all times relevant hereto, Douglas worked as a food line server under the employ of GCE, which is a division of Lakeview Center, Inc., an affiliate of Baptist Health Care. The stated purpose of GCE is "to operate a successful business which will provide meaningful employment to persons with disabilities in accordance with the requirements of the AbilityOne Program." AbilityOne is a program that creates jobs and training opportunities for people who are blind or who have other severe disabilities, empowering them to lead more productive and independent lives. GCE is an equal opportunity employer and does not discriminate on the basis of race, color, national origin, religion, gender, age, marital status, disability, or any other category protected by law. Douglas had been previously employed by GCE in 2010 as a custodian but voluntarily resigned to pursue employment elsewhere. He briefly took a job in the Orlando area, then went to Memphis for about one year. When he returned to Pensacola he took a position with GCE commencing May 9, 2013, in the food service division. He was hired to work the night shift, from 7:00 p.m., until approximately 1:30 a.m. As part of being hired anew by GCE, Douglas filled out an "Employee Self-Identification Form" in order to advise GCE of his status within a protected class. Douglas identified himself as an individual with a disability but stated that there were no accommodations which GCE needed to provide in order to improve his ability to perform his job. When Douglas recommenced employment with GCE in May 2013, he went through employee orientation. He received copies of the Employee Handbook and various written policies addressing issues such as discrimination, harassment, drug-free workplace, etc. He was also provided training on the GCE Code of Conduct and Respect in the Workplace policies. Douglas' job entailed preparing and/or serving food at the cafeteria in Building 3900 at the Pensacola Naval Air Station (NAS). He was by all accounts a good employee, a hard worker, and gained the respect of his supervisor, Prospero Pastoral (called "Mr. Pete" by most employees). In fact, when Mr. Pete was going to take an extended vacation to visit his home in the Philippines, Douglas was selected as one of the individuals to take over some of Mr. Pete's duties in his absence. Douglas got along well with his fellow employees and co-workers. Douglas' supervisors were Mr. Pete and Paul Markham, the assistant building manager of Building 3900. Douglas had a good relationship with Markham when he first started working in food service, but (according to Douglas) they did not get along so well later on. There did not appear to be any overt animosity between the two men during the final hearing. In November 2013, Markham was advised by the kitchen manager that some food items (including several hams) were missing from the kitchen inventory. It was suspected that some night shift employees may have been stealing the food items. Markham was asked to investigate and see if there was any suspicious behavior by any employees. On the evening of November 22, 2013, Markham changed from his work uniform into civilian clothes just prior to midnight. He then drove to a parking lot just behind Building 3900 and sat inside his darkened vehicle. He had driven his wife's car to work that day so that his pickup truck (which employees would recognize) would not alert others to his presence. At around midnight, he saw two employees (Gerry Riddleberger and Andy Bartlett) sitting outside Building 3900 talking. He could see Douglas in the building through the window. A few minutes later, Douglas exited the building carrying a large black garbage bag. Markham got out of his car and walked toward Douglas. As he approached, Markham began to "chat" with Douglas about trivial things. He asked how he was doing; he asked where Ira (another employee) was; he made small talk.2/ Finally, Markham asked Douglas what was in the bag. Douglas responded that "these are tough times" and that "I have to take care of my family." He then opened the bag and showed Markham the contents therein. The bag contained numerous bags of potato chips and snacks, some bananas, packets of coffee creamer, and other small items. Markham asked Douglas to hand over the bag and he did so. He then asked Douglas for his badge and access key. When Douglas handed those over, Markham told him to leave the NAS and he would be hearing from the GCE human resources/employee relations department (HR). Douglas left the base and Markham waited around a while to see if any other employees were carrying suspicious items. Not observing any other suspect behavior, Markham concluded his investigation for that evening. The next day, Markham handed over the bag and Douglas' badges to HR. It was determined by HR that Douglas' attempted theft of the property constituted just cause for termination of his employment with GCE. The HR office notified Douglas of the decision to terminate his employment. Douglas thereafter visited the HR office to ask that the decision be reconsidered. Douglas was told that the process for reconsideration was to submit, in writing, his statement of the reasons and whether there were mitigating factors to be considered. Douglas submitted a four-page request for reconsideration to Kahiapo, director of employee relations, dated December 2, 2013. In the letter, Douglas admitted to the theft but rationalized that other employees were stealing food as well. He said he had seen Markham taking boxes out of storage and putting them in his truck, but did not know what the boxes contained. He said a blonde worker on the food line ate food from the serving line, but had no details about the allegation. He complained that other workers had been caught stealing but had not been terminated from employment. He alleged that a worker (Jeanette) stole a bag of bacon and only got suspended. Markham had no support or independent verification of the allegations. GCE had one of its employee relations specialists, Alan Harbin, review Douglas' reconsideration letter and investigate the allegations found therein. All of the allegations were deemed to be unfounded. There was a worker named Jeanette who had been suspended for eating an egg off the serving line, but this did not comport with Douglas' allegation. When Harbin's findings were reported to HR, Kahiapo notified Douglas via letter dated December 18, 2013, that his request for reconsideration was being denied. The termination of employment letter was not rescinded. The decision by HR was in large part due to the zero tolerance policy against theft adhered to by GCE. The GCE Employee Handbook contains the following: In accordance with the general "at will" nature of employment with GCE, generally, employees may be discharged at any time, and for any reason. * * * An employee may be discharged on a first offense and without prior disciplinary action if the violation so warrants. * * * Conduct that may result in immediate termination of employment includes, but is not limited to: * * * [12] Theft, pilfering, fraud or other forms of dishonesty. It is clear--and Douglas admits--that Douglas was guilty of theft. He attempted to steal a bag of food items from the building in which he worked. During his term of employment, Douglas never made any claim concerning discrimination against him or anyone else due to his race, African-American. He was never mistreated or treated differently than any other employee by his supervisors. Douglas did not have any problem doing his job. His disability, being hard of hearing, did not adversely affect his employment. He never asked for any accommodation to do his job or suggested to anyone that his disability interfered with his ability to perform his duties. There are simply no facts in this case upon which a claim of discrimination could reasonably be based.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Terry R. Douglas, by Respondent, Gulf Coast Enterprise. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 August, 2014.
The Issue The basic issue in this case is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in an Administrative Complaint dated September 1, 1988. The Administrative Complaint alleges that the Respondent is incompetent to teach and that the Respondent's personal conduct has seriously reduced her effectiveness as a School Board employee. At the hearing, the Petitioner presented the testimony of two witnesses and offered five exhibits, all of which were received in evidence. No evidence was offered by or on behalf of the Respondent. A transcript of the hearing was filed on March 8, 1989, and on March 20, 1989, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law. The Respondent did not file any post- hearing documents. The substance of all proposed findings of fact submitted by the Petitioner has been accepted and incorporated in the findings of fact in this Recommended Order.
Findings Of Fact Based on the evidence received at the formal hearing in this case, I make the following findings of fact: At all times material hereto, Respondent was employed by the Dade County School Board as a Science Teacher assigned to Kinloch Park Junior High School. During the 1982-1983 school year, an incident involving the Respondent and one of her students was brought to the attention of her principal, Henry J. Pollock. The incident involves an alleged act of child abuse, wherein the Respondent was reported to have struck one of her students with a ruler. The incident precipitated notices being sent to the HRS and the Special Investigative Unit of the Dade County School District. An investigation was ordered. During the investigation, the Respondent was requested to make contact with and participate in the Employee Assistance Program. This recommendation was based on not only the immediate incident under investigation, but also on the fact that the Respondent had shown great difficulty in coping with the work assignment. Further, the Respondent was observed losing her temper and reacting to students in a way that was not acceptable. A follow up by the Respondent's principal revealed that the Respondent had refused to participate in the Employee Assistance Program. Thereafter, the Respondent sought and obtained a leave of absence. The basis of the request was for medical reasons. The Respondent's initial leave of absence was scheduled to end on May 10, 1984, but was extended to June 1984 based on a physician's statement from a Dr. Strobino in Rochester, New York. In June of 1984, the Dade County School District sent a letter to the Respondent informing her that in order to extend her leave of absence for the 1984-1985 school year, certain additional documentation would be required. The Respondent submitted a report from Dr. Strobino, dated July 18, 1984. In part, the doctor noted that "[Respondent] was still under his professional care, she remained ill, was unable to continue with her duties as a school teacher for a period of one year...." Leave was granted for the 1984-1985 school year. The Respondent made an additional request for a leave of absence for the 1985-1986 school year. In support of this request, the Respondent submitted a report from a Dr. Agostinelli, of Rochester, New York. The report was dated May 23, 1985. Essentially, the physician diagnosed the Respondent as suffering from "a moderate situational anxiety and depression." In May of 1986, the Respondent was notified by Dr. Gray's office of a scheduled "conference for the record" to be held on September 2, 1986. The Respondent appeared at the conference, and at the conclusion of the conference, she agreed to be examined by a Dr. Gail Wainger, M.S., who is a licensed psychiatrist. Dr. Wainger's report concluded that the Respondent could return to work if she remained in active psychiatric treatment. The Respondent never initiated the required psychotherapy. Instead, the Respondent remained in an unauthorized absence or absent-without-leave status until she retired in lieu of dismissal. The Respondent's retirement was effective June 24, 1987. During the ensuing months and up through the pleading stage of these proceedings, the Respondent has demonstrated that she not only does not wish to retain her teaching certificate and/or her eligibility to renew same, but is not emotionally stable enough to carry out her responsibilities as a member of the teaching profession. By her own admission, the Respondent is suffering from paranoid schizophrenia and is unable to teach school. This condition and the conduct associated with the condition has seriously reduced the Respondent's effectiveness as an employee of the School Board.
Recommendation On the basis of all of the foregoing, it is recommended that the Education Practices Commission issue a final order in this case suspending the Respondent's teaching certificate for a period of three years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of April 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989. COPIES FURNISHED: Craig R. Wilson, Esquire Flagler Court Building 215 5th Street Suite 302 West Palm Beach, Florida 33401 Ms. Elaine Daggar 605 21st Place, East Bradenton, Florida 34208 Mr. Martin Schapp, Administration Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Sydney H. McKenzie, Esquire General Counsel Office of the Commission of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 =================================================================
The Issue The issues in DOAH Case No. 10-0528 are whether the allegations set forth in the Administrative Complaint dated December 4, 2009, are correct, and, if so, what penalty should be imposed. The issue in DOAH Case No. 10-1672 is whether the application for license renewal filed by Avalon's Assisted Living LLC, d/b/a Avalon's Assisted Living and d/b/a Avalon's Assisted Living at Avalon Park (hereinafter Avalon I), should be approved. The issue in DOAH Case No. 10-1673 is whether the application for license renewal filed by Avalon's Assisted Living II LLC, d/b/a Avalon's Assisted Living at Southwest (hereinafter Avalon II), should be approved.
Findings Of Fact Avalon I is a six-bed assisted living facility (ALF), operating at 1250 Willow Branch Drive, Orlando, Florida, 32828, and holding license number 10813 with Limited Nursing Services licensure. Avalon II is a six-bed ALF operating at 13230 Early Frost Circle, Orlando, Florida, 32828, and holding license number 11318 with Limited Nursing Services licensure. Avalon I and Avalon II are operated by a limited liability company owned by Chiqquittia Carter-Walker and Robert Walker. Mrs. Carter-Walker acts as the administrator of the facilities. On July 23, 2009, the Agency conducted an inspection of Avalon I and determined that there were three "Class II" deficiencies, commonly cited as "tags" in reference to applicable regulatory standards. Tag A029 alleged that the training certifications, contained within the facility's personnel files to document the provision of required employee education, were false and that the training had not been provided. The training certificates for one Avalon I staff member were not accurate and falsely indicated that the referenced employee received training that had not been provided. The falsification was deliberate and was not erroneous. The inaccurate documentation of employee training misstated the qualifications of the ALF staff, falsely indicated that the staff was adequately trained, and presented the potential for harm to the health of the residents. The Agency correctly identified the deficiency as Class II. Tag A427 was based on regulatory provisions that permitted a terminally ill resident, no longer meeting the criteria for continued ALF residency, to remain in the ALF under certain conditions. The July 23, 2009, inspection indicated that such a resident continued to reside at Avalon I without compliance with relevant conditions. The conditions under which the terminally ill resident was permitted to remain at the ALF required that the hospice coordinate the care and provision of additional medical services and that an interdisciplinary care plan be developed and implemented by the hospice in coordination with the ALF. The July 23, 2009, inspection revealed that the interdisciplinary care plan failed to adequately designate responsibility for the various kinds of care required by the resident. The inspection revealed that a terminally ill resident remained in Avalon I without receiving appropriate medication for pain management even though such medications had been authorized. Although the ALF had undertaken the responsibility of administering the pain medication, there were occasions when no Avalon I staff member authorized to administer the pain medication was present at the ALF. Patient records indicated that the hospice representative attempted at several junctures to contact Mrs. Carter-Walker by telephone to resolve the problem and that Mrs. Carter-Walker was not accessible to the hospice representative. The resident unnecessarily suffered pain because the issue was not resolved in a timely manner. The failure to provide a terminally ill resident with appropriate pain medication resulted in a direct threat to the physical and emotional health of the resident, and, therefore, the Agency correctly identified the deficiency as Class II. Tag A700 reflects standards for resident care and requires that appropriate services be provided to residents. The July 23, 2009, inspection indicated that one resident was not being provided a nutritional supplement and that two residents were not being provided appropriate pain-relieving medications. As to the provision of nutritional supplementation, one resident with a history of weight loss had been prescribed a daily can of "Ensure" nutritional supplement. According to the facility records, the supplement had not been acquired by the ALF and had not been provided to the resident. As to the residents who were not receiving proper pain medication, one of the two was the terminally ill resident referenced in relation to Tag A427. As stated previously, the resident unnecessarily suffered pain because medication was not appropriately administered, which resulted in a direct threat to the health of the resident. Therefore, the Agency also correctly identified the deficiency cited as Tag A700 as Class II. The second resident had a history of hypertension and hypothyroid issues and had been prescribed a daily Ibuprofen (400mg) for pain. The Avalon I medication records indicated that, on some days, the medication had been provided twice daily to the patient, and, on other days, it had not been provided at all. The evidence establishes that the deficiencies identified in Tags A427 and A700 indicate a failure of the ALF to provide appropriate care and service to the residents of the facility. According to the uncontroverted testimony of Agency investigators as documented by the reports of their inspections, numerous lesser deficiencies were identified at Avalon I between 2007 and 2009, constituting a continuing pattern of inadequate performance and a failure to meet relevant standards. On August 5, 2009, an inspection conducted by the Agency at 1812 Crown Hill Boulevard, Orlando, Florida, 32828, indicated that an unlicensed ALF was operating at that address. On August 5, 2009, the Agency's investigator observed five individual residents in Avalon III. The investigator reviewed health assessments for the residents, all of whom required assistance with activities of daily living, including personal hygiene, ambulation, and meals. Medications for the residents were stored in a central area. The investigator reviewed medication observation records, indicating that the residents self-administered medications with observation by the Avalon III staff. Signage was present at Avalon III that identified Mrs. Carter-Walker as the administrator of the Avalon III facility. During the August 5, 2009, inspection, Mrs. Carter- Walker arrived at Avalon III and identified herself as the administrator of the facility. The investigator was familiar with Mrs. Carter-Walker and knew her as the administrator for Avalon I and Avalon II. Mrs. Carter-Walker identified herself as the Avalon III administrator to other care providers, including a clinical social worker, a registered nurse providing contract health care services to facility residents, and Administrators at other local ALFs. According to the testimony of an employee of Avalon III, there had been residents in the Avalon III location since at least June 16, 2009, at which time the staff member began to work at the facility. She worked five days per week, providing the resident services identified herein. During that time, there were always at least three residents in the facility. The same residents were present on a day-to-day basis. There is no evidence that such residents were transported out of the facility during the evening or that they did not otherwise remain at the Avalon III location overnight. A licensed practical nurse present at the Avalon III location on August 5, 2009, was the person who permitted the Agency's investigator to enter into the facility. The nurse was at the location to provide personal care assistance to a terminally ill resident receiving care through an agreement between the Mrs. Carter-Walker, as the facility administrator, and the hospice. After Mrs. Carter-Walker arrived at the Avalon III location, she was apparently unhappy that the nurse had permitted the investigator to enter the facility, and directed the nurse to leave immediately without providing further assistance to the resident. On the day of the investigation, the Agency investigator issued a "Notice of Unlicensed Activity/Order to Cease and Desist" to Robert Walker and Chiqquittia Carter-Walker for the Avalon III operation. Mr. Walker arrived during the inspection and identified himself as an owner to the Agency investigator. On August 14, 2009, the Agency received an application for licensure of an ALF at 1812 Crown Hill Boulevard, Orlando, Florida, 32828. The application, submitted by Robert Walker as the administrator, referenced the Avalon I and Avalon II as affiliated with Avalon III through ownership. Both Mr. Walker and Mrs. Carter-Walker submitted affidavits of compliance with background screening requirements as part of the Avalon III application. At no time was Avalon III licensed as an ALF. There was no evidence that the Avalon III residents were related to Mrs. Carter-Walker or her husband. There was no evidence that Avalon III was exempt from, or otherwise not required to comply with, relevant ALF licensing requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order revoking the licenses of Avalon I and Avalon II, denying the applications for license renewal filed by Avalon I and Avalon II, and assessing an administrative fine in the amount of $3,000 for the specific Class II deficiencies identified herein. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 28th day of January, 2011.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Geneva C. Rodgers, was hired as a secretary by respondent, Penney Retirement Community (PRC), on June 16, 1988. PRC operates a retirement community for Christian workers in Penney Farms, Florida (Clay County). As an employer with more than fifteen full-time employees, PRC is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Rodgers did not give her age at hearing. However, a Commission "investigatory report" and claim for unemployment compensation sponsored into evidence by respondent reflect she was fifty-nine years of age when she was terminated from employment on March 30, 1990. From her date of employment on June 16, 1988, until October 1, 1989, Rodgers was under the direct supervision of a Dr. Paul Hagens, who served as administrator for the facility. On that date, he was replaced by Dr. C. Noel White, a former minister who was then fifty years of age. Petitioner characterized her relationship with Dr. White as "awkward" and uneasy from the start and it is fair to say that the two never had a good working relationship. At hearing, Rodgers described the numerous tasks assigned to her as "overwhelming" and she agreed she was never able to adequately keep up with the workload. In addition, Dr. White and Dr. Hagens appeared to differ in their approaches to the job of administrator and Rodgers was unable to adapt to the workstyle and needs of her new supervisor. During the six months that she worked for Dr. White, petitioner had a series of problems with her work performance. These included such things as misfiling documents, making errors on Dr. White's appointment calendar, giving the wrong location for meetings, preparing documents incorrectly, repeatedly mishandling Dr. White's telephone calls, and omitting enclosures from various mailings. Towards the end of the six month period, Dr. White began to document many of these shortcomings. Copies of this documentation have been received in evidence. By March 1990, Dr. White concluded that it was necessary to terminate Rodgers because of the various deficiencies in her work performance. On March 30, 1990, which was a Friday, Dr. White called petitioner into his office and advised her she was being terminated effective that day but she would be given two weeks severance pay. Although petitioner was given an opportunity to review the documentation which White had accumulated concerning her shortcomings, she declined to review it. Petitioner was replaced by a forty-one year old female, Anita F. Clayton, who had over twenty years experience as a secretary-personnel assistant. When he hired Clayton, Dr. White did not know her age. To support her claim of discrimination, Rodgers pointed out that she was replaced by a younger woman. She also voiced the belief that Dr. White wanted a "younger" secretary because it "enhanced his ego". She opined that because Dr. White was "a very social administrator", he felt more "comfortable" with younger people in general. In addition, Rodgers felt the charge of inefficiency was unjustified because she had been given too much work, some of which she claimed should have been assigned to a non-secretarial position, and she was forced to work with an inefficient telephone system and copyier machine. Finally, she pointed out that one member of PRC's board of directors (a Dr. Wilson) had complimented her job performance. However, to the extent these assertions are credible, they do not support a finding that PRC had a discriminatory motive when it reached a decision to terminate Rodgers. Of the seventy-six full-time PRC employees, approximately twenty-four are between the ages of forty and sixty while six are over sixty years of age. Both the business manager and nursing home administrator are over sixty years of age and the head nurse is seventy-five years old. According to Dr. White, age was not a consideration in terminating Rodgers and he would have kept her as his secretary for as long as she wanted to work had he been satisfied with her performance. There is no evidence concerning Rodgers' salary while she was employed by PRC or the amount of lost wages, if any, that she suffered. The record does reflect that Rodgers collected an undisclosed amount of unemployment compensation pursuant to a claim filed on April 2, 1990.
Recommendation Based upon the foregoing findings of facts and conclusions of law, it is recommended that the petition for relief be DENIED. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1991. COPIES FURNISHED: Margaret A. Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Geneva C. Rodgers 511 Cove Street Green Cove Springs, Florida 32043 Allan P. Clark, Esquire 3306 Independent Square One Independent Drive Jacksonville, Florida 32202 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
