Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of 2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2 Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote: I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale. As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I. Ultimate Factual Determinations Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5 Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7 The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005.
The Issue This matter arose on Petitioner's Amended Administrative Complaint which charges Respondent with aiding an unlicensed person to evade Florida contracting licensing law and with conspiracy in using his general contractor's license to further such unlawful purpose. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.
Findings Of Fact Respondent is a registered general contractor, having been issued license number RG 0013006. On January 6, 1978, Respondent obtained Dixie County building permit No. 335 for the construction of Evans Square Shopping Center located in Cross City, Florida. After purchasing the raw land and securing the building permit, Respondent was unable to borrow the funds needed for construction of the shopping center, and thereafter sold his interest in the project to Allied American Properties of Florida, Inc. (Allied). On May 15, 1978, Respondent entered into a contract with Allied to construct the Evans Square Shopping Center. On May 22, 1978, Respondent entered into a con- tract with Raymond H. Moody, individually, and Florida Gulf Coast Construction Co., Inc., acting by and through its President, Raymond H. Moody, who were to perform the actual construction of the Evans Square Shopping Center. At the time of contracting, Moody and Florida Gulf Coast Construction Co., Inc., were unlicensed to perform the type of construction outlined in the contract. Florida Gulf Coast Construction Co., Inc., eventually obtained proper licensure but did so subsequent to the period at issue here. In the contract agreement with Florida Gulf Coast Construction Co., Inc., and Moody, Respondent agreed that he would assist in obtaining necessary permits and local government services required for the construction of the Evans Square Shopping Center. Subsequent to the signing of the May 22, 1978, contract, Respondent learned from Moody that neither he nor Florida Gulf Coast Construction Co., Inc., was properly licensed to perform the type of construction for which they had contracted. Respondent took no immediate action based on this information. Moody and/or Florida Gulf Coast Construction Co., Inc., continued to perform construction activities with the use of Respondent's building permit and contractor's license. Respondent received in excess of $50,000.00 with regard to the May 22, 1978, contract which included payment for the building permit he had previously obtained. He did not, however, receive reimbursement for the several hundred thousand dollars he had invested in this project before the sale to Allied.
Recommendation From the foregoing, it if RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty as charged in the Amended Administrative Complaint and suspending his general contractor's license for a period of one year. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of December, 1982.
Findings Of Fact In keeping with the terms of Subsection 120.60(6), Florida Statutes, the Petitioner, by certified mail, return receipt requested, notified the Respondent of its intentions to modify or revoke the Respondent's license as a "home health agency." This notification occurred on June 12, 1980. A copy of that notification may be found as Respondent's Exhibit A-30. Through the Notice, the Petitioner alleged that the Respondent was operating a "subunit" in Pasco County, Florida, at a time when the "parent agency" was located in Pinellas County, Florida. Under the circumstances, the Petitioner was out of the persuasion that a separate license for the Pasco County office must be procured and that in fact Gulf Coast did not have the necessary license and had been operating as a "subunit" in violation of Section 10D-68.04(2), Florida Administrative Code. Petitioner afforded Gulf Coast an opportunity pursuant to the Notice to demonstrate that he had complied with all lawful requirements related to the Pasco County operations of the Respondent and to give reason why the State of Florida should not institute administrative proceedings against the Respondent. On June 20, 1980, through correspondence which may be found as Petitioner's Exhibit VII, Gulf Coast made written explanation concerning its activities in Pasco County, particularly as related to the office in Pasco County and this item of explanation was reviewed by the Department. The explanation was not found to be sufficient and on October 3, 1980, a Notice of Intent to Enter Final Order was filed by the State of Florida and served on the Respondent by certified mail. Although this charging document was framed in terms of a "cease and terminate" claim as stated in the prior footnote, the claim was subsequently amended to be an action for modification or revocation of the Respondent's Pasco County activities in the New Port Richey office. The basis of the claim was to the effect that the Respondent was operating in its New Port Richey office without benefit of license, in violation of Section 10D.68.04(2), Florida Administrative Code, related to the requirement for licensure of "subunits." On October 20, 1980, Gulf Coast submitted a timely answer and affirmative defenses to the allegations as set forth in the Administrative Complaint. Those affirmative defenses were responded to on October 27, 1980, in a timely fashion, and the matter was forwarded to the State of Florida, Division of Administrative Hearings for consideration in keeping with the terms of Subsection 120.57(1), Florida Statutes. Following a continuance, the matter was set for final hearing on April 24, 1981, and a hearing de novo was conducted. This Recommended Order is being entered after receipt of the transcript of the record of the hearing and following review of memoranda in argument and a review of the proposed facts, conclusions of law and recommended dispositions filed by counsel for the parties. To the extent that the proposals, conclusions and recommendations are consistent with the findings herein, they have been utilized. To the extent that the proposed findings, conclusions and recommendations are inconsistent with the findings herein, they are hereby rejected. Fact Determinations Gulf Coast Home Health Services, Inc., is a nonprofit corporation in the business of providing "home health care" services in Pinellas, Pasco, Hernando and Hillsborough Counties, State of Florida. To conduct these activities, the Respondent has been licensed by the State of Florida, Department of Health and Rehabilitative Services, in keeping with Chapter 400, Part III, Florida Statutes, requiring the licensure of "home health agencies." Petitioner, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government which has, among other responsibilities, the licensure and regulation of "home health agencies", to include the Respondent. The "parent agency" of Gulf Coast is located in St. Petersburg, Pinellas County, Florida. The Respondent has other offices in Clearwater, Pinellas County, Florida; Brooksville, Hernando County, Florida; and New Port Richey, Pasco County, Florida. The New Port Richey office, which is the primary focus of this inquiry, was opened on June 27, 1975, and an office in that community has been in operation since that time. There has been one move to a larger facility. Notification to the Petitioner of the existence of the New Port Richey office occurred on June 30, 1975, by correspondence from the Administrator of the Respondent to the Program Coordinator for Home Health Services, Division of Health, Department of Health and Rehabilitation Services. This may be seen through a copy of correspondence which may be found as Respondent's Exhibit A-1. There have been other indications of the existence of this office which have occurred over a period of time beyond the original notification and the instances may be seen in a review of the Respondent's Composite Exhibit A. Gulf Coast Home Health Services, Inc., received its initial license to operate as "home health agency" from a "parent office" in St. Petersburg, Pinellas County, Florida, on April 14, 1977. For each year subsequent to that time, to include April 1, 1981, through March 31, 1982, the Petitioner has continued to license the Respondent as a "home health agency". The area of responsibility for this "home health agency" has included Pasco County, Florida. The Respondent has never applied for any form of license for its office in New Port Richey. Consequently, a separate license has not been issued for the benefit of that facility. The first indication given by the State of Florida, Department of Health and Rehabilitative Services that a license would be required for the New Port Richey office came on June 12, 1980, in the form of the investigation letter referred to in the case history. The New Port Richey office of the Respondent is located approximately forty (40) miles from the "parent agency" in St. Petersburg, Florida. This distance has remained relatively constant since the inception of the New Port Richey in 1975. The New Port Richey office covers an area of 3,925 square feet, floor coverage. It can be seen in examining the graphs found in the Respondent's Composite Exhibit E, that a substantial percentage of the services rendered by the Respondent, in terms of home visits, are made by the New Port Richey branch office. Petitioner's Exhibit III, lists the employees in that office, to include the Associate Director of Nursing, depicted in the table of organization, Petitioner's Exhibit I. By job description, Petitioner's Exhibit III, she has the duty of coordination and administrative responsibility related to personnel in the New Port Richey office, with particular emphasis on nursing services. Some of the personnel in the New Port Richey staff area as follows: registered nurses, paramedical supervisor, registered nurse supervisor, physical therapist, home health aide, home health aide secretary, field supervisor, office manager, medical records secretary, weekend office supervisor, log clerk, and transcriber, among others. These persons are involved in providing daily "home health care services" from the New Port Richey office and files are maintained in the office related to clients serviced by the office. The New Port Richey office also provides support services to the Respondent's Brooksville and Clearwater offices, in instances where those other offices are short on staff or supervisory capacities. This arrangement is an addition to supervisors who might be provided from the St. Petersburg office. The New Port Richey office of the Respondent provides transcription services for patients' progress notes for the benefit of the Brooksville and Clearwater offices, as well as providing those services for the New Port Richey office. The Petitioner conducts annual surveys on the health care provider by the "home health care agency" and in the course of those surveys, the materials to be surveyed which are gathered from the individual offices, to include New Port Richey, are separated for consideration in the survey process. When the surveys are concluded, the materials related to the survey process are returned to the individual offices of the Respondent, to include New Port Richey. Appearance at the surveys is by the Director of Medical Services, an employee housed in the St. Petersburg office. The Administrator for Gulf Coast Home Health Services, Inc., in testifying about the responsibility of certain personnel in the New Port Richey office, namely clerical and secretarial positions was of the opinion that those personnel are not involved in the determination of eligibility for service or involved in the billing process for services rendered. Notwithstanding this testimony, the job description of the New Port Richey personnel would indicate the participation of those personnel in the determination of eligibility and in the billing process, and leads to the conclusions that the New Port Richey personnel do have those responsibilities. Financial service employees of the Respondent who operate from the St. Petersburg office are ultimately responsible for payroll functions, accounts payable functions and billing of medicare and private patients. The New Port Richey office is not involved in staff education and does not have an Advisory Board and Medical Director assigned solely to that concern. In addition, some supervision for the New Port Richey office is provided from St. Petersburg. In summary, the New Port Richey office is subject to the controls and policies established at the St. Petersburg "parent agency" and relies to a certain degree on logistical support from the parent organization; however, in terms of day-to-day decisions and the delivery of "home health service," the New Port Richey office has a substantial degree of autonomy. This fact was recognized by its Administrator in correspondence of October 20, 1978, addressed to Joseph D. Dowless, Jr., Director of Licensure and Certification, Department of Health and Rehabilitative Services, a copy which may be found as Respondent's Exhibit A-18. In that correspondence, the Administrator states that, "our Pasco office is a fully equipped well organized Agency, larger in size then [sic] the majority of agencies in the State. From here we have been able to provide high quality services to our Hernando patients." (This letter was written in response to correspondence from the Department on the subject of establishment of an office in Hernando County.) The New Port Richey office of the Respondent is a semi-autonomous agency servicing persons in Pasco County at a time when the "parent agency" is located in Pinellas County. As the organization is now constituted, it is capable of sharing administration, supervision and services on a daily basis with the "parent agency".
Recommendation Based upon a full consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Respondent, Gulf Coast Home Health Services, Inc., have its operations being conducted from the New Port Richey, Pasco County, Florida, office suspended, subject to proper licensure of that "subunit." DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of June, 1981. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1981.
Findings Of Fact Petitioners, Larry C. and Jan D. Giunipero, reside at 2345 Tour Eiffel Drive, Tallahassee, Florida. On February 29, 1984, they obtained a building permit from Franklin County to construct a single-family dwelling on their lot in Alligator Point, Franklin County, Florida. The Giuniperos engaged the services of a professional engineer to design their beach house. In so doing, the engineer designed the structure so as to comply with the Federal Emergency Management Association (FEMA) guidelines, which are minimum building requirements established by the Federal Insurance Administration to qualify for federal flood insurance. These guidelines have been adopted by the Franklin County Planning and Zoning Department, and insure that the structure can withstand winds of 110 miles per hour. Even before the Guiniperos obtained their permit, respondent, Department of Natural Resources (DNR), was in the process of adopting new Rule 16B-26.14, Florida Administrative Code, which would establish a coastal construction line for Franklin County. Under the proposed rule, a coastal construction control line on Alligator Point would be established, and any excavation or construction activities thereafter on property seaward of the control line would require a permit from DNR, and have to be in conformity with all structural requirements set forth in Rule 168-33.07, Florida Administrative Code. Because the Guiniperos' lot lies on the seaward side of the control line, they were obviously affected by the rule. The rule adoption process was quite lengthy and well publicized. It began in October, 1983 when a public workshop was held in Apalachicola and aerial displays of the control line were placed in the courthouse. Further public hearings were held in Tallahassee in February, March and April, 1984. These hearings were the subject of numerous notices and advertisements in the Florida Administrative Weekly, Tallahassee Democrat, Apalachicola Times, Panama City News Herald, and Franklin County News. Clearly, the agency met all legal requirements in advertising the rule. However, for some reason, neither the Giuniperos or their professional engineer were aware of the pending rule change. Similarly, the Franklin County planner failed to advise them of the imminent rule change even though aerial displays of the proposed line were in the courthouse when the permit was issued. Rule 168-26.14, Florida Administrative Code, was adopted by the Florida Cabinet on April 5, 1984, and eventually became effective on April 30, 1984. As of that date, any construction or excavation work seaward of the control line required DNR to issue a permit unless a dwelling was already "under construction" in which case the project was grandfathered in. The parties agree that petitioners do not fall in this category since the dwelling was not "under construction" within the meaning of DNR rules. A few days before the rule became effective, a DNR engineer met with the Franklin County planner to review all building permits issued since September, 1983 for construction on the seaward side of the control line. The engineer did this so that he could inspect all building sites after the line became effective and determine which, if any, were "under construction" and therefore exempt from DNR permitting requirements. Because of the volume of permits issued to persons seeking to beat the April 30 deadline, and his unfamiliarity with alligator Point, the planner was unable to give the DNR engineer the precise location of petitioners' lot. On or about May 1, 1984, the engineer visited the general locale of petitioners' lot. There was no activity on petitioners' lot, and no permit posted on the site. Accordingly, he assumed a recently completed beach house some 300 feet east of petitioners' lot was actually the Giuniperos' house. Since it was already completed, he merely filed a report the following day indicating that "if the location referenced above is accurate, the structure appeared to be completed at that time." On July 6, 1984, petitioners proceeded to install twenty-three 8" by 8" pilings on their lot at a cost of $1,760. DNR discovered this construction activity a few days later and notified petitioners by telephone that such activity was illegal without a permit. A formal cease and desist order was sent on July 11, 1984, and no activity has taken place since that time. An application for a permit remains in abeyance pending the outcome of this proceeding. The structural requirements of DNR are more stringent than those previously required by Franklin County and FEMA. Indeed, the FEMA guidelines are not a part of a coastal construction regulatory program but are merely minimum standards to meet federal flood insurance criteria. Therefore, while the Guiniperos' proposed dwelling is designed to withstand a windload of 110 miles per hour DNR requires a structure to meet a windload of 140 miles per hour. DNR also recommends that larger and more expensive pilings be used, and that the structure be designed to adequately resist a 100 year return interval storm event. Because the DNR requirements are more stringent, petitioners estimate they will incur total costs of $8,890 just to pull out the old pilings and install larger ones. 1/ Additional costs may be incurred to redesign and build the structure to withstand a wind velocity of 140 miles per hour. By rule, DNR does not grant a waiver of its permit requirements except where a building is already constructed and an applicant desires to make "minor additions" to existing nonconforming structures. The Giuniperos do not qualify for such a waiver.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioners' request for a waiver from the permitting requirements of Rule 16B-33.07 be DENIED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 11th day of March, 1985.
The Issue At issue is whether a moratorium, adopted by the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees), constitutes an invalid rule. If the moratorium on authorizations for use of sovereignty, submerged land in connection with development of current unbridged, undeveloped coastal islands is determined to constitute a rule, the secondary issue to be resolved is whether the rule is an invalid exercise by the Board of Trustees of delegated legislative authority.
Findings Of Fact The parties stipulated at the final hearing to the facts set forth in paragraphs 1-10, below. Stipulated Facts The parties do not object to the standing of Petitioners and Intervenors for the limited purposes of this proceeding only and any subsequent appeal. On August 22, 1989, the Board of Trustees accepted a staff report on policy and programs affecting Florida's coastal islands. The Board of Trustees also approved a temporary moratorium on authorizations for use of sovereignty, submerged land that would facilitate development of currently unbridged, undeveloped coastal islands until such time as the Division of State Lands of the Department of Natural Resources (Division) could adopt a policy for such requests. On December 19, 1989, the Board of Trustees deferred consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands. On February 6, 1990, the Board of Trustees voted to again defer consideration of an interim policy governing the use of sovereignty, submerged lands adjacent to unbridged coastal islands until after the issue was reviewed at a Cabinet workshop. On May 8, 1990, the Board of Trustees extended the temporary moratorium announced on August 22, 1989, and directed staff to begin rule making on a rule to serve as interim policy until a comprehensive policy and rule governing coastal islands could be adopted. On June 12, 1990, the Board of Trustees approved a draft of proposed rules relating to the leasing of state-owned lands adjacent to undeveloped coastal islands and directed staff to notice the rules for adoption, hold a series of public hearings and return to the Board of Trustees for final action by September. The proposed rules (Rules 18-21.003 and 18-21.004, Florida Administrative Code) were noticed in the Florida Administrative Weekly on August 10, 1990, and public hearings were held in Tallahassee on September 4, 1990, Ft. Pierce on September 5, 1990, and Naples on September 6, 1990. In August, 1990, petitions were filed challenging the temporary moratorium as a nonrule rule, and the proposed rules, arguing that the Board of Trustees' actions constituted an invalid exercise of delegated legislative authority. On October 9, 1990, the Board of Trustees accepted a status report on the proposed amendments to Rules 18-21.003 and 18-21.004, Florida Administrative Code, relating to the management of unbridged coastal islands. On October 23, 1990, the Board of Trustees considered amendments to the proposed rule based on comments made at the public hearing and written comments submitted to the agency. However, prior to accepting the proposed changes the Board of Trustees approved a request by the Governor's Interagency Management Committee (IMC) for additional time to review the proposed rule amendments. The IMC considered the proposed amended rule on November 29, 1990. Public comments were taken at that meeting which resulted in the IMC recommending that further changes be made to the proposed amended rule. On December 18, 1990, the Board of Trustees approved the withdrawal of the original rule concerning development of coastal islands, authorized changes to the proposed rules and directed staff to notice for adoption the proposed rules as amended. In addition, the Board of Trustees voted to continue the temporary moratorium until the adoption of a coastal barrier island rule. Other Facts The initial moratorium applied to those coastal islands subject to direct or indirect wave, tidal and wind energies and which provide primary or secondary protection to the mainland. Further, islands were to be considered undeveloped if unbridged (not connected via bridge to another upland) and either had no docking facilities authorized by the Trustees, or overall development density consisted of less than one permanent structure per five acres of upland. On May 8, 1990, the Trustees extended and modified the prior moratorium. The effective date of the moratorium remained August 22, 1989, and the following exceptions were created: Notwithstanding the moratorium, the Board shall allow the repair or maintenance of existing utility lines that cross sovereignty submerged land, so long as such maintenance and repair do not provide for an upgrade in capacity to serve additional customers, except to maintain public safety or as ordered by the Public Service Commission. The moratorium shall not prohibit the construction of two- slip private residential docks meeting the requirements of Chapter 18-20.004(5)(b), F.A.C. Notice of the moratorium was not provided and an economic impact statement was not prepared as required by Section 120.54, Florida Statutes. Affected persons were not given a point of entry to challenge the moratorium before it became effective. The moratorium affects sovereignty submerged lands statewide and affects all applicants who seek use of such land to facilitate development of undeveloped, unbridged coastal islands. The moratorium is an agency policy statement of general applicability, which is applied and is intended to be applied with the force and effect of a rule of law. The moratorium continues in effect at the present time with general applicability to a statewide class of persons seeking use of state-owned submerged lands adjacent to unbridged, undeveloped coastal islands as defined in paragraphs 11. and 12., above.
The Issue Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.
Findings Of Fact Respondent Gulf Coast Home Health Services, Inc. is a corporation providing home health care services in several Florida counties. It has an office in Hernando County and also serves clients in Citrus County. It presently has no license to serve Citrus County and has no Subunit in Hernando County. Petitioner Department of Health and Rehabilitative Services notified Respondent on January 17, 1980 that it intended to enter a final order requiring Respondent to terminate its operations in the two counties, aid Respondent requested an administrative hearing. Respondent's home office is located in St. Petersburg, Pinellas County, Florida. It was licensed to serve an area including Pinellas, Pasco, Hillsborough and Hernando Counties until licensure in 1980-81, when Hernando County was omitted. It was then stipulated that Respondent could continue operations in Hernando County until the final order in this case. Respondent was licensed to serve said counties without obtaining a certificate of need inasmuch as Petitioner had determined that Section 400.504, Florida Statutes, was inapplicable to those counties in which there was service to the area previous to the effective date of the statute. Respondent first served Hernando County from its Pinellas County office, but after opening an office in Pasco County in April of 1979, it notified Petitioner that it was serving Hernando County from its Pasco County office. Petitioner wrote a letter to Respondent on April 28, 1978 stating that in view of the increased expansion of Gulf Coast Home Health Services, Inc. into Hernando County, a sufficient client population base in Hernando County, and because of the time and distance factors from Pinellas County to Hernando County, a "Subunit" must be established in Hernando County (Petitioner's Exhibit 2, page 17). Respondent replied to the April correspondence by letter dated October 20, 1978 that servicing of Hernando County bad been moved from Pinellas County to Pasco County and stated that Respondent, too, saw a need to establish an office in Hernando County (Petitioner's Exhibit 2, page 14). Thereafter, an office was opened in Brooksville, Hernando County, Florida, by Respondent, but no application for a Subunit was filed. By correspondence dated June 14, 1979 Petitioner notified Respondent that a certificate of need had been deemed not necessary but an application for a Subunit was necessary and should be filed by July 6, 1979, and that a survey would then be scheduled. No application was filed, and a Notice to Show Cause why the Respondent's license should not be modified was issued on August 23, 1979. Respondent took no action. The office that was established in Brooksville, Florida in April of 1979 is under the overall general supervision of an Associate Director of Nursing. The Associate is the supervisor of the staff in the office both as to patient care and the clerical processing of all office records. The Associate's duties include supervision of a variety of skilled professional nurses, physical therapists, speech therapists, occupational therapists, social workers, home health aides and homemakers as well as the supervision of clerical personnel. The field supervisor in St. Petersburg coordinates the care of patients from the hospital to the home and relays information regarding patient care from the patient's physician to the nursing supervisor in the Brooksville office, who in turn relays the information to the appropriate staff who visit the patient. Patient medical records and plans for treatment are kept in the Brooksville office except for the annual survey, when they are moved to the home office in St. Petersburg. Some billing and typing of progress notes for the Brooksville office is provided by the Respondent's office in New Port Richey before such records are sent to the home office in St. Petersburg, Florida. The distance from Brooksville in Hernando County to St. Petersburg in Pinellas County is approximately 63 miles. Pasco County, where Respondent has another office, is between Pinellas County arid Hernando County. The distance between the office site in New Port Richey and that of Brooksville is about 37 miles. The area is rapidly growing, and the traffic is often congested on the few highways. II. On August 26, 1976 the Program Coordinator for Home Health Services of the Department of Health and Rehabilitative Services stated in a letter to the president of Gulf Coast Home Health Services, Inc. that Respondent had agreed to assume care on an interim basis of the former patients of Alaris Home Health Care Agency, which had ceased operations in Citrus County, Florida. The letter further stated that if the staff of that agency were employed by Respondent they should be supervised from the central office of Gulf Coast Home Health Service, Inc. (Petitioner's Exhibit 3, pages 15-16). Respondent accepted the patients of Alaris in August of 1976 as well as other patients from Citrus County. It continued to serve patients from Citrus County but did not apply for a license to serve Citrus County and did not include that county on its applications for licensure for the other counties it served until 1980. In late 1978 or early 1979 the Director of the office of Licensure and Certification, Department of Health and Rehabilitative Services, received a complaint from Central Florida Home Health Agency, Inc. that Respondent was operating in Citrus County. The Director notified Respondent's Director that Gulf Coast Home Health Service, Inc. was not licensed to serve Citrus County and requested some action. On January 15, 1979 Respondent sent a memorandum to the Brooksville office in Hernando County instructing the staff to cease serving Citrus County and forwarded a copy of said memorandum to Petitioner. However, before the memorandum was effected Respondent's Director verbally rescinded his directive, without notifying Petitioner, and continued to serve patients in Citrus County (Petitioner's Exhibit 3; Transcript, pages 139-144) Central Florida Home Health Agency, Inc. has been issued a license to service Citrus County, and at present both that agency and Respondent are serving patients in Citrus County, Florida. Central Florida Home Health Agency, Inc. has requested the Department of Health and Rehabilitative Services to enjoin Respondent from its activities in Citrus County. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that Respondent be required to cease its operations in Hernando County until and unless it is licensed as a Subunit. It is also recommended that Respondent terminate its operation in Citrus County until and unless it is licensed to serve said county. DONE and ORDERED this 5th day of September, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert P. Daniti, Esquire Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 Howard P. Ross, Esquire 980 Tyrone Boulevard Post Office Box 41100 St. Petersburg, Florida 33743
The Issue Whether Respondent, Coastal Health,1/ discriminated against Petitioner, Tyshoan Wilcox, in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by disciplining and then suspending her, in retaliation for her participation in an investigation of a co- worker?s sexual harassment complaint against Coastal Health.
Findings Of Fact Coastal is a 120-bed skilled nursing facility located in Daytona Beach, Florida, operated by MF Halifax, LLC, d/b/a Coastal Health and Rehabilitative Center (Coastal Health). Coastal Health is an employer within the meaning of the Florida Civil Rights Act of 1992, as amended (chapter 760, Florida Statutes), and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a female Licensed Practical Nurse (LPN) who was employed by Coastal Health from sometime in 2005 until her resignation on September 27, 2011. Her first position with Coastal Health was as a floor nurse. She was promoted to “Wounds and Restorative,” then to Unit Manager in March 2011. The Unit Manager?s job description is “to assist the Director of Nursing (DON) in leading and directing the overall nursing operation of a unit in the facility in accordance with residents? needs, government regulations and company policies so as to maintain excellent care for the residents while achieving the facility?s business objective.” Among the Unit Manager?s essential job functions is the responsibility to “ensure practices that maintain high morale and staff retention to include effective communication, prompt problem resolution, positive supervisory practices and maintaining a positive work environment.” Petitioner worked the seven o?clock a.m. to three o?clock p.m. (7 to 3) shift and supervised six or seven Certified Nursing Assistants (CNAs) and three nurses. As reflected in the Discrimination Complaint, the claim asserted by Petitioner against Coastal Health in this proceeding is unlawful retaliation by Coastal Health allegedly based upon Petitioner?s involvement in an internal investigation into a co- worker?s complaint of sexual harassment. Sexual Harassment Complaint One of the CNAs under Petitioner?s supervision at the time in question was Evelyn Clark. Petitioner is hostile toward Ms. Clark. Petitioner believes Ms. Clark had a relationship with the facility Administrator, Michelle Carroll, which undermined Petitioner?s ability to supervise Ms. Clark. Petitioner testified that Ms. Clark made inappropriate comments of a sexual nature to her and that she observed Ms. Clark making inappropriate comments and sexual innuendos to other employees. She testified that she reported these incidents to Ms. Carroll and to then-Director of Nursing, Jeanie Mendoza. Petitioner maintains that no action was taken against Ms. Clark. Petitioner was friendly with another CNA, Chad Johnson. Mr. Johnson was not supervised by Petitioner; in fact, he worked the three o?clock p.m. to eleven o?clock p.m. shift (3 to 11), and their shifts rarely overlapped. Sometime in the third week of August, 2011, Mr. Johnson lodged a complaint with Coastal Health, claiming Ms. Clark touched him inappropriately and made sexual comments to him. Petitioner testified that Mr. Johnson reported Ms. Clark?s alleged sexually inappropriate conduct to her prior to complaining to management, and she directed him to go to management with his complaint. She also testified that she brought Mr. Johnson?s complaint to the attention of Ms. Mendoza the same day he reported it to Petitioner. The Investigation Christy Teater, Director of Operations for Coastal Health, initiated an investigation in response to Mr. Johnson?s sexual harassment complaint. The investigation entailed interviews of over 30 employees at Coastal, including the Petitioner. During the interviews, employees were asked whether they had witnessed inappropriate conduct at the facility, and if so, the nature of the conduct and the names of the individuals involved. Petitioner was interviewed in connection with the investigation on August 23, 2011, by Ms. Teater and Jacklene Wolf, Nurse Consultant for Coastal Health. During the interview, Petitioner reported that she had witnessed Ms. Clark engage in inappropriate behavior in the workplace. She described Ms. Clark?s derogatory comments to her, such as calling her a “T-back” (which is a reference to Petitioner?s underwear), and making grabbing motions at her buttocks. Petitioner did not name any other employee as having engaged in inappropriate behavior at the facility. The investigation was an internal corporate investigation and was not triggered by a complaint to either the Florida Commission on Human Relations or the Equal Employment Opportunity Commission. While Mr. Johnson apparently did file such a complaint, he did so only after his employment with Coastal Health was terminated by his own resignation. Petitioner was not a target of the investigation and was only interviewed in connection with Mr. Johnson?s sexual harassment complaint. However, during the investigatory interviews, Petitioner was identified by other employees as engaging in inappropriate behavior, gossiping and “stirring the pot” among other employees. Petitioner?s Behavior Petitioner admitted to having repeated gossip about other employees in June 2011. The gossip related to LaTonya Graham, who had previously worked with Petitioner in Wounds and Restorative. While the testimony on the specific gossip was mostly hearsay, it is clear that Ms. Graham had a relationship with a male employee at the facility that was disruptive and created tension between Petitioner and Ms. Graham. Petitioner complained that Ms. Graham and her boyfriend at the time, Freddy Sampson, would fight in the parking lot – usually about him paying attention to other females at the facility, including Petitioner. At some point, Mr. Sampson?s relationship with Ms. Graham ended and he took up with another employee, Wanda.2/ The testimony was not dispositive of who first initiated gossip about Ms. Graham, whether Petitioner; Mr. Sampson, the ex-boyfriend; or Wanda, the new girlfriend; but that is irrelevant. Petitioner admitted to participating in and repeating gossip regarding Ms. Graham. Ms. Carroll testified that unprofessional workplace behavior was pervasive at the facility when she began as Administrator on August 9, 2010. In July 2011, all employees were ordered to attend a mandatory in-service training on appropriate workplace behavior.3/ Petitioner testified that she refrained from additional gossip after the July 2011, in-service training. Post-Investigation Actions Following investigation, Coastal Health management concluded that Ms. Clark did engage in inappropriate behavior with Mr. Johnson; however, they found that Ms. Clark?s behavior was not unwelcome and she did not harass Mr. Johnson. Ms. Carroll described Mr. Johnson and Ms. Clark as having a “consensual” relationship. After the investigation, Ms. Carroll instructed Ms. Clark and Mr. Johnson to stay away from each other. At the conclusion of the investigation Ms. Teater made the decision to discipline Petitioner, Ms. Clark, and Mr. Johnson. According to the Coastal Health Human Resources Policies and Procedures Manual, disciplinary action may be imposed for both Category I and Category II offenses. Petitioner was cited for Category I, no. 11 – “conduct that would be widely regarded as improper or inappropriate in a work group (to include, but not limited to resident abuse or neglect) or serious violations of Corporate Compliance Policies and Privacy Rule Policies.” Petitioner and Ms. Clark were both cited for “inappropriate behavior in the workplace” and received a disciplinary counseling. Category I offenses may subject the employee to discharge, but Ms. Teater exercised her discretion in this case to enter a written counseling rather than discharge, or even suspend, both employees. The record is silent as to discipline received by Mr. Johnson. In addition to written discipline, the company further disciplined Ms. Clark by removing her as “culture coordinator” at the facility. With regard to written discipline, company policy GCHC 701, Disciplinary Action, provides: An associate memorandum is to be used for progressive discipline. On each occurrence, it should be noted: The violation number; and The event which will next take place should further policy violation occur. The associate?s immediate supervisor should explain in full the reason for the disciplinary action. The associate may respond in writing if he/she so desires on the associate memorandum. The associate is to sign the memorandum to acknowledge that he/she has seen it. It does not imply agreement. The associate may comment in writing if desired. If the associate refuses to sign the memorandum, the supervisor should have a manager witness that the associate refused to sign. The associate will receive a copy of the memorandum. All disciplinary actions that have reached their anniversary date should be pulled from the personnel files and kept in an alphabetical file for the time period regarding retention of the personnel files. Gulf Coast Health Care reserves the right, in its sole discretion, to vary from these policies and take disciplinary action without any written warnings. On August 24, 2011, Petitioner was called into Ms. Carroll?s office and given a disciplinary counseling. The associate memorandum cites her for violation number 11, Category I, “inappropriate behavior.” The memorandum explained that Petitioner was identified by other employees during interviews as having made inappropriate comments, that such behavior was unacceptable practice for a supervisor, and that any future occurrences would result in further disciplinary action, up to and including termination. Petitioner responded in writing on the associate memorandum, consistent with Policy 701. She denied having had any inappropriate conversation with anyone at the facility. Also on August 24, 2011, all employees were required to attend an in-service training on harassment in the workplace. Each employee was given a copy of company policy 704, Sexual and Other Unlawful Harassment Policy Statement. Petitioner acknowledged receipt of the policy by her signature dated August 24, 2011. During the August 24, 2011, in-service training, all employees were also given a copy of Policy GHCH 718, Problem Resolution. Petitioner acknowledged receipt of the policy by her signature dated August 24, 2011, on the Sexual Harassment Policy statement. Policy 718 lays out the procedures for an employee to present a problem, complaint, suggestion, or question to Coastal Health and the procedures for resolving issues presented. Generally, the procedure requires the employee to take issues first to their supervisor, unless the supervisor is the problem, then “up the ladder” to successively higher managers if the problem is not resolved to the satisfaction of the employee. The policy requires the complaint or problem be reduced to writing, and sets forth specific timeframes in which actions must be taken. The policy includes a Problem Resolution form to be used by the employee. The form provides space for the written complaint or problem, as well as the written responses by each level of management, as applicable. Petitioner did not use the company?s problem resolution policy to address her problem supervising Ms. Clark or any other CNAs under her supervision. Nor did she use the company?s policy to address her concern with perceived “special treatment” of Ms. Clark based on a relationship with Ms. Carroll. Nor did Petitioner use the problem resolution policy to address Mr. Johnson?s report of sexual harassment to her. In fact, Petitioner never followed the company?s Problem Resolution policy and, at hearing, denied knowledge of any such policy. Michael Militello, Director of Nursing, made the decision to suspend Petitioner pending an investigation into additional complaints of her unprofessional conduct reported after the August 24, 2011, written counseling. On September 16, 2011, Mr. Militello and Heather Jackson, Risk Manager, telephoned the Petitioner to notify her of her suspension. They were unable to reach Petitioner and left a message on her voicemail to please call the facility. Petitioner returned the telephone call the same day and spoke to Ms. Jackson, who informed Petitioner of her suspension. Shortly after her first conversation with Ms. Jackson, Petitioner called the facility again and inquired into the basis of her suspension. She spoke with Ms. Jackson, who reported that Petitioner was being disciplined for violation number 11, Category I, “inappropriate conduct.” On September 26, 2011, Ms. Carroll left a message on Petitioner?s answering machine asking Petitioner to come to the facility to meet with Ms. Teeter from Coastal Health, but did not state what the meeting was about. Petitioner submitted her resignation letter to Ms. Carroll and Mr. Militello on September 27, 2011. She testified that she assumed she was being fired and did not want that on her resume. Petitioner resigned before Coastal Health completed its investigation into the allegations of additional inappropriate behavior. ULTIMATE FINDINGS Petitioner was disciplined twice by her employer, Coastal Health, receiving a written counseling on August 24, 2011, and a suspension on September 16, 2011. Petitioner did engage in unprofessional behavior, at least in June 2011, by her own admission. At the final hearing, Petitioner expressed disbelief that her discipline on August 24, 2011, could be for actions taken in July 2011, and argued that the “write-up” must have been based on her cooperation in the investigation the preceding day. However, there is no evidence that the company was prohibited from delaying discipline. Indeed, it appears that the employer only gained specific knowledge of the behavior after the investigation in August. There appears to be no causal link between Petitioner?s participation in the investigation into Mr. Johnson?s sexual harassment claim and Petitioner?s discipline. While the two occurred only one day apart, other employees were also disciplined, including the alleged harasser. If Ms. Carroll had some special relationship with Ms. Clark by which she received special treatment, it was not demonstrated at final hearing. On the contrary, Ms. Clark received the same, if not greater, discipline as Petitioner. The second discipline, suspension on September 16, 2011, was based on reports of Petitioner?s continued unprofessional behavior. Petitioner?s resignation on September 27, 2011, occurred before Coastal Health completed its investigation into the reports.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner?s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 26th day of November, 2012, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 26th day of November, 2012.
The Issue Whether Petitioner's application for a Certificate of Need and approval of a capital expenditure proposal pursuant to Chapter 381, Florida Statutes, and Section 1122 of the Social Security Act (42 U.S.C. 1320a-1), to establish a ten station chronic renal dialysis facility at Clearwater, Florida, should be granted. At a prehearing conference held on January 9, 1978, Bio-Medical Applications of Clearwater, Inc. was granted intervention as a party to these proceedings based on its current application for a Certificate of Need and for Section 1122 review of its capital expenditure proposal to establish a twenty station chronic renal dialysis facility in Clearwater, Florida, which is also the subject of state administrative proceedings at this time. The intervenor's Motion for Consolidation of its case with the instant case for the purposes of hearing was denied, after objection thereto by Petitioner. The Intervenor's Motion for a Continuance to enable it to conduct discovery procedures was denied in the absence of consent thereto by Petitioner, but the right was reserved to renew the motion after the final hearing had commenced. Intervenor did renew such motion at the time of final hearing. The motion was denied, it not having been shown that any discovery requests were then pending.
Findings Of Fact On September 21, 1977, Petitioner filed its application for a Certificate of Need and Section 1122 project review with Respondent. The application is for a ten station chronic dialysis unit to serve the needs of instate renal disease patients at Clearwater, Florida. The proposed facility would provide limited care hemodialysis for outpatients drawn primarily from north Pinellas and Pasco counties. Petitioner plans to lease space in a building providing easy access to Morton Plant Hospital, Clearwater, Florida. That hospital has agreed to provide the inpatient support services required by a freestanding hemodialysis unit. The hospital has approval for facilities to treat acute patients and is desirous of acting as a "backup unit" for petitioner's chronic patients who develop complications or otherwise require hospitalization. In addition, petitioner and Tampa General Hospital have an affiliation agreement whereby the hospital also will act as a "backup" facility to provide inpatient care for petitioner's dialysis patients. The Morton Plant Hospital has employed three nephrologists to staff its acute dialysis unit and these physicians intend to work also in Petitioner's chronic unit. The Morton Plant Hospital is the largest in Pinellas County and its assistant director testified that if petitioner is unable to establish its dialysis unit, there would be a serious adverse impact on the long-range plans of the hospital because it needs a nearby "feeder" for its acute unit. (Exhibit 4, Testimony of Pickering, Graves, McKinney) Petitioner is a nonprofit Florida corporation that is owned and directed by five nephrologists who currently practice medicine in the Tampa area. Four of the five physicians are full-time members of the instructional staff at the University of South Florida and also engage in private practice. The other physician is in full-time private practice. All five directors provide supervisory care of patients at Petitioner's Lakeland and Tampa, Florida, dialysis facilities, at the Tampa General Hospital and Tampa Veterans Administration Hospital. It is contemplated that the director of the proposed Clearwater dialysis unit will be Dr. Harry J. Free, a nephrologist and staff member of Morton Plant Hospital. Additional personnel that will be required in the proposed unit are a nursing supervisor, nurses, dietitian, social worker, technician, and clerical personnel. Petitioner plans to lease some 3500 square feet of space in an existing building with any necessary renovation costs built into the cost of the lease, which is estimated at eight to nine dollars per square foot. Suitable sites have been identified and are available in the Clearwater area. Petitioner plans either to lease or purchase necessary dialysis machines, water treatment equipment, and office and medical equipment at a total cost of approximately $77,000, depending on current resources. The cost of additional dialysis machines for home training will be paid out of a federal Department of Health, Education and Welfare grant to establish a home dialysis program, effective March, 1978, for a period of nine years. Based on the evidence presented, it is found that Petitioner's project is financially feasible and that the facility will be adequately staffed to provide effective health care. (Exhibit 4, Testimony of Pickering, McKinney) End-stage renal disease (ESRD) is the stage of kidney impairment when the human kidney has ceased to function and a machine must take over the function. Without dialysis, the ESRD patient will die. There are basically two kinds of ESRD life-sustaining services - dialysis and transplantation. Dialysis is a process which separates substances in the blood by taking advantage of their different diffusibility through a porous membrane by means of the artificial kidney (Dialysis station) . Transplantation is the process whereby a patient's nonfunctioning kidney is replaced surgically with a functioning kidney donated by a relative or a suitable cadaver. Hemodialysis is employed on an acute basis for hospital inpatients and on a chronic basis for those persons suffering from ESRD who must have this maintenance procedure performed usually three times per week, five hours per treatment, in order to live. Chronic hemodialysis is performed on an outpatient basis and may be rendered by home self-care or in-center treatment. In-center care is carried out in a facility where dialysis is either accomplished by the individual or with the assistance of nurses. (Exhibit 3, Testimony of Pickering) There are five chronic dialysis units in facilities located within the four-county area of the Florida Gulf Health Systems Agency, Inc. The counties are Pasco, Pinellas, Hillsborough and Manatee. Four of these facilities are located in Hillsborough County and one in Pinellas County at St. Petersburg. There is no unit in the northern part of Pinellas County to service that area and Pasco County. The total number of chronic dialysis stations at the five facilities total 91, including 18 stations at the VA Hospital in Tampa. The VA Hospital had 39 dialysis patients as of January 1, 1978, and has established a 41 patient maximum for the facility. (Exhibits 3, 4, 8, Testimony of Pickering, McKinney, Riedsiel) Thee fees for outpatient chronic dialysis for Medicare patients are established by the federal government and have been fixed at $150.00 per treatment since 1973. The sum of $12.00 of that amount is for the physician's fee. For eligible Medicare patients, the government reimburses 80 percent of the allowable charge. Ninety percent of dialysis patients are eligible for Medicare. If Petitioner's proposed unit is approved, there will be a savings to the government in travel costs and there will be greater convenience to the patients in that those in the northern Pinellas and Pasco County area are now obliged to travel either to Tampa or St. Petersburg for treatment. (Exhibit 3, Testimony of Pickering, supplemented by Composite Exhibit 5) In its application, petitioner used a standard formula to arrive at the projected need for additional dialysis stations by August 1, 1978. This was based on the actual number of patients (217) in the four-county area, excluding Veterans Administration patients, as of August 1, 1977. The estimated number of new patients in the ensuing year, based on anticipated population growth to 1.6 million, was added to this figure to arrive at a total number of patients. Different computations were made based on either 80 or 100 new patients per million population. The actual number of successful kidney transplants performed in the area during the previous year was deducted from the projected patient population, as was an estimated 20 percent mortality rate for all patients. It was further assumed that patients would use each station two shifts a day for six days a week. Based on the existing number of dialysis stations, Petitioner estimated that between 4 and 11 new stations would be required within a year, depending upon either a 90 percent or 80 percent utilization rate of stations. These figures did not include transient patients or winter visitors. (Exhibit 4) Petitioner's proposal was first considered by the Florida Gulf Health Systems Agency, Inc., a federally funded agency charged with initial review of such applications, on November 28, 1977. It found that the proposal was in conformity with standards, criteria, and plans employed by the agency under the Section 1122 review program and recommended approval of the application. This agency utilized a formula similar to that of the Petitioner and determined that there would be a net need for five additional dialysis stations in 1978 and seventeen additional stations in 1979. However, it based this estimate on a figure of 3.2 patients per station, with each station operating only at 80 percent utilization. It also used an increased projected mortality rate of 21.8 percent per year, and estimated there would be 96 new patients per million population. The agency's rationale for recommending approval of Petitioner's application for ten additional stations even though the data indicated a need for only five in 1978, was based on the exclusion of transient population from the data, the life and death nature of the service, and the time period required for phasing in of the project. (Exhibit 3, Testimony of Silver) After receipt of the recommendation of the Florida Gulf Health Systems Agency, Inc., Respondent's medical facilities consultant reviewed the application, taking into consideration the recommendations and report of that agency, together with the report of a health program specialist of the Kidney Disease Program in the Department of Health and Rehabilitative Services. The latter report used erroneous figures in its computations to arrive at a zero need for additional dialysis stations by August, 1978. In a subsequent report, using more accurate figures as to patient load for each machine and a 15 percent instead of a 20 percent projected mortality rate, a new recommendation still found no need for additional stations within the coming year. However, unrealistic population figures were used in arriving at the probable number of new patients. (Exhibits 10, 11, Testimony of McDaniel) Respondent's consultant found that Petitioner's application met all the statutory and regulatory criteria for approval except as to need for additional facilities. Using an admittedly erroneous figure as to the average number of patients per dialysis station, he determined that an excess of 11 stations would exist in 1978 and an excess of two stations in 1979. Based on the recommendation of the consultant, respondent's Administrator of the Office of Community Medical Facilities advised Petitioner by letter of December 13, 1977, that its proposal was not favorably considered for the following reasons: The finding by the Florida Gulf Health Systems Agency that only five additional ESRD stations will be needed in 1978. The determination by the Office of Community Medical Facilities that a surplus of eleven stations will exist in the Health Service area in 1978. On December 16, 1977, Petitioner filed its petition for a formal hearing to contest the denial of its application. (Exhibits 1, 2, Testimony of Sjoberg) At the hearing, both Petitioner and Respondent presented updated figures as to actual patient population on January 1, 1978, based on informal surveys of local dialysis facilities. They stipulated that 242 patients were utilizing dialysis stations in the four-county area as of that date. Both parties also basically agreed that 3.6 patients per station is realistic, as is a 20 percent mortality rate, that the projected area population by the end of 1978 will be about 1.6 million, and that an average of 96 new patients per million population could be anticipated. The number of successful kidney transplants in 1977 (12) was undisputed. It was shown that the limitations on veterans gaining access to the Tampa VA Hospital would be modified by deaths in the hospital in the amount of some eight patients. The evidence also showed that Petitioner's planned home dialysis program would take care of the needs of about 23 patients per year. In applying the above figures to the basic formula, it is found that at least 78 stations will be needed by the end of 1978. Since 73 stations are in existence at the present time, five new stations would be required in 1978 based on a projected net patient population of 282. This figure does not include occasional utilization of dialysis stations by an unknown number of transients and winter residents of the area. However, since the number of such patients is unknown, this factor cannot be used in calculating the need for facilities. Applying the standard formula, it also conservatively can be found that at least five additional dialysis stations will be required in the first half of 1979. Respondent, as a matter of unwritten policy, restricts its consideration of need to the one-year period subsequent to the filing of an application. It will take petitioner approximately three to four months to have its facility operational for the treatment of patients. In consideration of the necessary administrative approvals required prior to commencing the purchase of equipment and rental and renovation of building space, it is found that Petitioner will not be in a position to operate its proposed facility until the latter half of 1978. (Exhibits 3, 6, 7, 12, 13, Testimony of McKinney, Sjoberg, Riedsiel, Shires)
Recommendation It is recommended that the petitioner's application for Certificate of Need/Capital Expenditure Proposal be approved. Done and Entered this 14th day of February, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Art Forehand Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301 Eric Haugdahl, Esquire Staff Attorney, Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 John H. French, Jr., Esquire 630 Lewis State Bank Building Tallahassee, Florida 32301 Gary Silvers Director of Project Review Florida Gulf Health Systems Agency, Inc. 10051 Fifth Street North Suite 253 St. Petersburg, Florida Mark B. Cohn, Esquire Post Office Box 1102 Tampa, Florida 33601
