The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL 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 17th day of June, 2019.
The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Respondent, Holmes Regional Medical Center, is guilty of violating Subsection 760.10, Florida Statutes (2003), by allowing Petitioner, Stephanie Francis, to be harassed because of her race and denying her reasonable accommodations for her pregnancy during her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is an African-American female who was employed by Respondent as a Certified Nursing Assistant. At the time of the incidents that led to her dismissal from employment, she was pregnant although her condition was not apparent and was unknown initially, at least, by her employer. Respondent is a Florida corporation that operates a major hospital facility in Brevard County, Florida. Respondent is subject to Chapter 760, Florida Statutes (2003). Having recently received her certification, Petitioner's employment began in October 2002. Several months after she became employed, Petitioner requested and received permission to attend Health Unit Coordinator classes. This training would provide the opportunity for career advancement. In order to enable Petitioner to attend Health Unit Coordinator classes, adjustments were made in the work schedules of Petitioner and her co-workers. As the classes were during the day, Petitioner began working night shift. Shortly after she began taking Health Unit Coordinator classes, Petitioner became aware that she would not receive additional pay for attending the training. Petitioner, whose work had been satisfactory, had a marked change in attitude after she learned that she would not receive additional pay. Beginning in April 2003, Petitioner requested numerous transfers from the acute care unit to which she had been initially assigned. Her immediate supervisor, Pegreen Bibby, approved each of Petitioner's transfer requests. Petitioner was not transferred. No evidence was received regarding the reason(s) why Petitioner was not transferred. Petitioner indicated that she was not aware of why she was not transferred. On April 23, 2003, a co-worker complained that Petitioner spoke to a patient in an inappropriate manner. An investigation confirmed the inappropriate conduct. Petitioner was counseled by her immediate supervisor and received a Counseling Memo which noted that Petitioner had a "poor attitude." Petitioner refused to sign the Counseling Memo. On April 28, 2003, Petitioner's immediate supervisor received a complaint from a patient about Petitioner's conduct. An investigation revealed that Petitioner had treated the patient callously and had made several inappropriate comments to the patient. In the course of the investigation, Licensed Practical Nurse Linda Sweeney (LPN Sweeney) commented that Petitioner made inappropriate comments and had a bad attitude, which according to LPN Sweeney was "normal behavior" for Petitioner. LPN Sweeney is African-American. As a result of the April 28, 2003, incident and related investigation, Petitioner received a written warning and information about the Employee Assistance Program. Petitioner refused to sign the written warning. On March 3, 2003, Petitioner presented a note from a gynecologist stating that she required light-duty and that she could not lift more than 20 pounds. Petitioner did not offer an explanation for the note and her supervisor, unaware that Petitioner was pregnant, did not inquire, believing that the basis for the light-duty was a private matter. Petitioner did not indicate that she had made her co-workers aware of her pregnancy. Petitioner's job description requires her to have the ability to lift up to 40 pounds unassisted and to lift, assist, bathe, and dress patients. No positions were available in the acute care unit that did not require fulfillment of the job description. Light-duty work is reserved for employees who suffer job-related injuries. As a result, Petitioner was not scheduled for work. On May 14, 2003, Petitioner presented a note indicating that she was able to return to work without restrictions. She was immediately rescheduled for work. Upon her return to work, her co-workers complained that Petitioner's attitude was "hostile." Co-workers, both African-American and Caucasian, complained that Petitioner resisted helping them. Petitioner was observed wearing headphones and reading a newspaper for approximately two hours while co-workers performed her and their responsibilities. As a result of Petitioner's demonstrated poor attitude and lack of job-effectiveness, Respondent initiated the final stage of its progressive disciplinary process: "decision day." On May 23, 2003, Petitioner received a Counseling Memo which documented her inappropriate work behavior, co-workers' complaints, and failure to follow Respondent's employee rules. Again she refused to sign the Counseling Memo. When "decision day" is invoked, an employee is given paid leave and presented the opportunity to offer a written action plan addressing the deficiencies listed in the Counseling Memo. Petitioner refused to present an action plan as required. Petitioner refused a memo regarding the Employee Assistance Program, indicating that she had one. Petitioner left work and did not return. As a result, on May 30, 2003, Respondent terminated Petitioner's employment. Petitioner failed to identify a similarly situated employee who received different treatment than did Petitioner. Respondent presented evidence of a Caucasian male employee who had refused to submit an action plan following a "decision day" and was discharged. Petitioner suggests, without offering evidence, that she was "harassed" by LPN Sweeney. As previously noted, LPN Sweeney is African-American. In addition to Petitioner's noted inappropriate behavior, subsequent to her discharge, Petitioner made Respondent aware that she had secretly tape-recorded conversations of her co-workers. She acknowledged this during her testimony. This, of course, is a violation of Section 934, Florida Statutes (2003), and is a punishable as a third-degree felony. While not the basis for her dismissal from employment, Respondent's representative testified that this conduct constituted a dischargeable offense in accordance with Respondent's policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Stephanie Francis Post Office Box 161 Melbourne, Florida 32902 Andrew S. Hament, Esquire Gray, Harris & Robinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact In or about December 1998, the Department of Children and Family Services (Department) initiated an employment screening pursuant to Chapter 435, Florida Statutes, incident to Petitioner's application for employment at a child day care center in Delray Beach, Florida. That screening revealed that on September 28, 1998, Petitioner was arrested for exposure of sexual organs, a violation of Section 800.03, Florida Statutes, and unnatural and lascivious acts, a violation of Section 800.02, Florida Statutes. The screening further revealed that on October 20, 1998, Respondent entered a plea of guilty to the charges; adjudication was withheld; and Respondent was placed on probation for a term of 6 months. Given the screening results, the Department notified Respondent by letter of December 14, 1998, that he was ineligible for continued employment in a position of special trust (working with children or the developmentally disabled), and accorded him an opportunity to request an exemption under the provisions of Section 435.07, Florida Statutes. Petitioner requested such an exemption, and the Department duly-convened a hearing to consider Petitioner's request. Subsequently, the Department advised Petitioner by letter of January 29, 1999, that his request for exemption was denied, and these proceedings ensued at Petitioner's request to challenge the Department's decision. As observed in the preliminary statement, neither Petitioner nor anyone on his behalf appeared at hearing, and no proof was offered to support his claim for exemption. Such failing is dispositive of the case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's request for exemption from employment disqualification. DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 30th day of July, 1999. COPIES FURNISHED: Henry C. Cornelius 2315 Southwest 22nd Avenue Boynton Beach, Florida 33445 Colleen Farnsworth, Esquire Department of Children and Family Services 111 South Sapodilla Avenue, Suite 201 West Palm Beach, Florida 33401 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
Findings Of Fact The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until September 2017. Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent. Count I On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home. Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later. Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident. The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else. The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary. Count II On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark. On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening. Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements. The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren. The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident. On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent. The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren). In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident. On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at this time.” Count III In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight. Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000. DONE AND ENTERED this 20th day of August, 2018, 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 20th day of August, 2018.
The Issue The issues for determination are whether Respondent committed the acts alleged in a denial letter issued by Petitioner, and, if so, whether Petitioner should refuse to renew Respondent's family day care license pursuant to Subsection 402.310(1)(a), Florida Statutes (2003).
Findings Of Fact Petitioner is the agency responsible for licensing and regulating day care homes in the state. Respondent is licensed to operate a day care home known as Kidz Kingdom Academy at 738 Glenwood Avenue, Sebring, Florida 33876 (the facility). Petitioner inspected the facility nine times between November 25, 2003, and July 7, 2004. The specific dates of inspection were November 25, 2003; March 30 and 31; April 21 and 28; June 2, 11, and 15; and July 7, 2004. With a few exceptions, Respondent committed 53 violations of applicable statutes and rules during the nine inspections. Approximately 13 of the 53 violations are potentially repeat violations because they involve violations of the same statute or rule. However, they may not be repeat violations because most of the violations arise from distinctly different facts, i.e., a different factual offense that violates the same statute or rule. The remaining violations are frequent violations but are not repeat violations because they do not violate the same statute or rule on more than one occasion irrespective of the factual basis of the violation. Neither party cited any statute, rule, or case law that defines a repeat violation. On July 14, 2004, Petitioner issued a denial letter proposing to deny Respondent's application for renewal of her license. The denial letter is the notice of charges against Respondent. The literal terms of the denial letter are ambiguous. For example, the denial letter, in relevant part, notifies Respondent that the nine inspections revealed "repeat violations" of applicable statutes and rules. The notice of charges further notifies Respondent that based on "these violations" Petitioner proposes to deny Respondent's application for renewal of her license. The reference in the denial letter to "these violations" arguably could be construed to mean the "repeat violations," however the term "repeat violation" may be defined. Alternatively, the reference to "these violations" arguably could be construed to mean the 13 "repeat violations" and the 40 frequent violations. The denial letter adequately resolves the apparent ambiguity by attaching and referencing a "chart setting out specific violations" that Petitioner found during the nine inspections. The reference to "these violations" includes all 53 violations listed on the "chart." The distinction between "repeat violations" and "frequent violations" is not material to the grounds stated in the denial letter for the proposed refusal to renew Respondent's license. The denial letter does not include an allegation that Respondent has failed to pay an outstanding fine that Petitioner previously imposed against Respondent. During testimony, however, Petitioner's agency representative testified that she would recommend that the agency renew the license if Respondent were to pay the fine. The testimony of the agency representative is not relevant and material to an allegation that Respondent failed to pay an outstanding fine. The denial letter does not include any such allegation, and Petitioner cannot refuse to renew Respondent's license on grounds not included in the denial letter. Nor did the agency representative provide any written evidence of the imposition of an unsatisfied fine. The testimony of the agency representative is relevant and material to Petitioner's argument during the hearing that any one violation, or all of them together, threaten children or others with serious harm within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The agency representative is the person charged with responsibility for evaluating the severity of the alleged offenses and explicating the evidentiary grounds for the proposed agency action. It is axiomatic that the agency representative would not recommend renewal of the license upon payment of the fine if any one or all of the 53 violations represented any harm to the public, including children. One or all of the 53 violations do not threaten harm to children or other members of the public within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). Although Petitioner showed by clear and convincing evidence that Respondent committed the 53 violations, Petitioner failed to show by clear and convincing evidence that one or all of the 53 violations threatened children or others with serious harm. One "repeat violation" involved missing hand towels in the bathroom or hand towels mounted too high for children to reach. Respondent regularly replenished hand towels and placed them where children could reach them. Respondent failed to adequately supervise children during nap times. Volunteers, rather than full-time staff, sometimes supervised children. However, full-time staff members were close by in the adjacent room. Respondent repeatedly failed to comply with applicable standards of maintenance and cleanliness. On one occasion, the microwave oven needed to be cleaned and sanitized. During one inspection, some ceiling tiles in the facility were "coming down and showed evidence of water damage," and there was some evidence of "rodent or vermin infestation." Respondent corrected both violations in a timely manner. On March 30 and June 11, 2004, lighting at the facility was inadequate. Respondent adequately corrected the violation during each inspection by turning on more lights and opening the blinds during nap time. Gaps in a wood fence enclosing the play area were too large. However, a chain link fence immediately inside the wooden fence prevented a child from exiting through the gaps in the wooden fence. During two inspections, the facility placed soiled diapers in an open container. The facility corrected both violations at the time of the inspection by covering the containers or taking them outside. On November 25, 2003, the facility left some electrical plugs in the music room uncovered. The inspection was a preliminary inspection, and the facility corrected the problem before any follow inspection. No follow-up inspections cite Respondent for a similar violation. On March 30, 2004, the facility used highchairs that had been recalled. The facility immediately corrected the problem by taking the recalled highchairs out of service and replacing them with new high chairs not subject to a recall. On March 30, 2004, a wooden climber for a slide in the playground was wobbly. A "slat was not secured to the railing." In addition, a latch on a toddler swing did not function properly. Respondent corrected both violations at the time of the inspection. On June 11, a swing and a rope ladder were broken. A fence was beginning to sag. Respondent corrected both violations before a follow-up inspection. On March 30 and 31, 2004, Respondent failed to maintain signed parental authorizations for the facility to administer prescription medications to children at the facility. Respondent corrected the deficiencies immediately by requiring the parents to remove the medications from the facility because the parents failed to comply with the facility's request for a signed authorization form. Petitioner alleged, but did not show by clear and convincing evidence, that Respondent failed to give medications to children as prescribed. Petitioner submitted no evidence that Respondent ever administered the specific medication at issue contrary to the prescribed dosage or without a signed authorization. On November 11, 2003, and June 11, 2004, Respondent failed to properly dispose of a bottle after use by leaving the bottle in an infant room after use. Respondent corrected the violation at the time of inspection by moving the bottle to the kitchen where Respondent properly stored the other bottles for subsequent cleaning. In addition, Respondent failed to properly refrigerate baby formula supplied to the facility for one of the infants in Respondent's care. Petitioner failed to show how long the formula had not been refrigerated. Respondent corrected these deficiencies at the time of inspection. On November 25, 2003, and June 2, 2004, Respondent failed to maintain immunization records for some of the children at the facility. Immunization records for other children had expired. The parents had not returned the completed immunization records to the facility by the deadline of December 5, 2003. Respondent failed to maintain health examination records for 14 students. Petitioner did not show that this was an ongoing or uncorrected violation. From November 25, 2003, through June 2, 2004, Respondent failed to maintain forms required to be signed by employees that the employees understood the requirements for reporting child abuse and neglect. On June 2, 2004, Respondent failed to maintain on file a signed affidavit of good moral character for an employee. The insufficiencies could have been corrected by obtaining the signature of the respective facility employees. From November 25, 2003, through June 11, 2004, Respondent failed to maintain required records showing that background screening for facility employees had been completed. On June 11, 2004, Respondent had a fingerprint card on file for an employee, but had not submitted the card to the Department of Law Enforcement within five working days of the first day of employment. Respondent failed to maintain documentation that volunteers at the facility were in fact volunteers. Petitioner submitted no evidence of which volunteers or employees were involved, the beginning date for employment or volunteer service, or whether the individuals continued to be volunteer or be employed at the time of the alleged deficiency. Petitioner alleges that Respondent failed to maintain required attendance records on June 2, 2004, for a field trip. The inspector did not reconcile attendance lists from the staff managing the field trip with those maintained by staff at the facility. The two lists, together, may or may not have accounted for all of the children either at the facility or on the field trip. Respondent corrected the alleged deficiency at the time of the inspection. However, Respondent failed to obtain required parent permission slips for some of the students and failed to inform some parents that their children would be on a field trip. Respondent failed to maintain required attendance records from April 21 through June 11, 2004. On June 11, 2004, Respondent failed to maintain proper attendance records. Approximately 16 children attended the facility on that date, but the parents of only 12 children actually signed the attendance sheet. On November 25, 2003, Respondent failed to maintain a written discipline policy and failed to maintain properly signed student discipline forms. On March 30, 2004, Respondent failed to maintain proper ratios of staff to children. On July 7, 2004, Respondent left toxic or hazardous cleaning materials exposed to children. On June 2, 2004, Respondent failed to maintain staff with adequate first aid and CPR training. On June 2, 2004, Respondent failed to post the menu and failed to adequately implement single service items. Petitioner conducted re-inspections on March 31, April 28, and June 11 and 15, 2004. Of the 53 alleged violations, Petitioner cited only 13 on re-inspection. However, only four of the 13 were uncorrected deficiencies. The remaining nine were deficiencies cited for the first time on re- inspection. The four deficiencies cited as uncorrected on re- inspection were the failure to maintain attendance and background screening record reports and the failure to maintain a clean facility in good repair. As previously stated, none of the violations were severe within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The violations did not result in death or serious harm to a child. There was no evidence that the violations created a probability, rather than a possibility, of death or serious harm to a child. The agency representative would have approved the application for renewal but for an unpaid fine by Respondent. It is axiomatic that an agency representative would not ignore severe deficiencies in exchange for the payment of a fine. The licensee corrected all of the alleged violations except those pertaining to attendance records, a clean facility, and background screening record reports. Petitioner failed to show by clear and convincing evidence that the missing or incomplete background screening record reports pertained to specific employees who were currently on staff at the facility. The evidence was vague and lacked the specificity required in a license discipline proceeding. Petitioner intends the denial letter to be an administrative complaint. The Administrative Complaint does not allege that the licensee has any previous violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent guilty of committing those acts found to be violations in this Recommended Order and imposing an administrative fine of $2,900. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of November, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Keith Peterson, Esquire 170 North Florida Avenue Bartow, Florida 33830 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
