The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should renew the assisted living facility (ALF) and limited nursing services (LNS) licenses held by Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon), and whether AHCA should fine Avalon for alleged statutory and rule violations.
Findings Of Fact Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon) holds a biennial assisted living facility (ALF) and limited nursing services (LNS) license issued by AHCA. Avalon's ALF is in a residence at 1250 Willow Branch Drive in Orlando, Florida. It has a licensed capacity of six beds. There are six bedrooms in the residence. Four are designated as "licensed" on the ALF's floor plan. Two bedrooms are designated as "unlicensed." In February 2013, Avalon applied to AHCA to renew its license for the years 2013 through 2014.3/ In July 2013, AHCA conducted a biennial survey to determine whether Avalon's license should be renewed. Several deficiencies were noted, including: Tag A0007, Class III, admitting a resident who was ineligible due to inability to transfer from bed to wheelchair with assistance; Tag A0008, Class III, a missing AHCA Form 1823 health assessment; Tag A0009, Class IV, failure to have a resident sign a contract for six months after admission; Tag A0030, Class III, using bedrails without a doctor's order to confine a resident in bed; Tag A0076, Class III, not having a written policy requiring staff to immediately contact hospice if a resident receiving hospice services suffers cardiopulmonary arrest; Tag A0083, Class III, not having documentation that staff on duty had current CPR and first-aid training; and Tag A0162, Class III, not having documentation of a resident's informed consent as to whether a nurse would oversee Avalon's assistance with self-administration of medication. Avalon did not take issue with the deficiencies or classifications at the time and took prompt action to correct them.4/ In September 2013, AHCA conducted a follow-up survey, which disclosed that the deficiencies noted in July 2013 were corrected or no longer existed. As a result, Avalon was not fined for those deficiencies. However, during the follow-up survey, it came to the attention of AHCA that an individual, identified by his initials, R.M., to preserve confidentiality, went missing from an ALF operated nearby at 13230 Early Frost Circle by Avalon's Assisted Living II, LLC, d/b/a Avalon's Assisted Living II (Avalon II). Avalon and Avalon II had the same administrator, Chiqquittia Carter-Walker, who had a controlling interest in both facilities. R.M. could not be found despite an all-out police search. As a result, AHCA initiated a complaint investigation and declined to grant Avalon's renewal application pending completion of the investigation.5/ In October 2013, while the September 2013 incident was being investigated, another apparent deficiency came to the attention of AHCA's surveyors. They noticed that an 81-year-old resident of Avalon's ALF, who is identified by her initials, D.D., to preserve confidentiality, had metal surgical staples in her scalp from her forehead to the crown of her head. There appeared to be dried blood around the staples. At about this time, Avalon's administrator, Mrs. Carter-Walker, observed that D.D. was unable to transfer from bed to wheelchair, which was not normal for her, and appropriately decided to arrange for the resident to be taken to the hospital by ambulance. Further investigation into the metal staples revealed to the surveyors that they had been placed in the resident's scalp when she was hospitalized in July 2013 for medical attention to a head wound incurred when she fell while a resident of Avalon. AHCA initiated a complaint investigation into the reason why the staples remained in the resident's scalp for three months, which became another reason for AHCA's denial of Avalon's renewal application pending completion of the investigation. September 2013 Complaint Investigation Regarding R.M. The R.M. investigation resulted in six alleged deficiencies: Tag A025 (Resident Care - Supervision), Class II, inadequate resident care and supervision; Tag A0004 (Licensure - Requirements), unclassified, placing R.M. in an unlicensed room and/or exceeding licensed bed capacity at Avalon's ALF; Tag A077 (Staffing Standards - Administrators), Class III, inadequate supervision of the ALF by the administrator; Tag A079 (Staffing Standards - Levels), Class III, inadequate staffing for the residents, including R.M.; Tag A160 (Records - Facility), Class III, not listing R.M. as a resident on the admission/discharge log; Tag A167 (Resident Contracts), Class III, not having a resident contract for R.M.; Tag A190 (Administrative Enforcement), Class III, having staff not cooperate with AHCA's investigation; and Tag AZ815 (Background Screening; Prohibited Offenses), unclassified, letting Robert Walker provide personal care or services directly to R.M. after being arrested and awaiting disposition on several felony charges. Essential to all of the charges arising out of the September complaint investigation is R.M.'s alleged status as a resident. Avalon's position is that he was a non-resident renter of one of the unlicensed beds, not a resident of its ALF. Avalon's first contact with R.M. was through the discharge staff at Florida Hospital, where he had been admitted after being involuntarily committed under the Baker Act. After telephonic communication about whether Avalon could accept R.M. as a resident in its ALF, Mrs. Carter-Walker and her husband, Robert Walker, went to the hospital on July 19, 2013, to meet Mary Loftus, a social worker on the hospital's discharge team, and R.M. At the time, Mr. Walker had pending felony charges that disqualified him from working at the ALF or having direct contact with residents.6/ During the meeting, R.M. was cooperative, pleasant, with euthymic (normal) mood and constricted affect, and some confusion in thought process. R.M.'s participation ended when he agreed to go to Avalon's ALF and stated he would look forward to seeing Mrs. Carter-Walker and her husband on the following Monday. The social worker then further discussed the discharge plan with Mrs. Carter-Walker and her husband and noted R.M.'s "exit-seeking behavior" upon admission at the hospital - meaning, he would try to leave the hospital without being discharged. They also discussed finances, including R.M.'s $1,400 a month Social Security benefit and possible eligibility for Veteran Administration benefits, and R.M.'s nearest relatives, his foster "son" and his "daughter-in-law," Jacqueline Renea Fulcher, who lived in Polk County. The social worker then telephoned to arrange for Mrs. Fulcher also to be at the hospital for the planned discharge. When Mrs. Carter-Walker and her husband arrived at the hospital for the discharge on July 23, 2013, they were given an AHCA Form 1823, signed by R.M.'s psychiatrist the day before. The form stated R.M.'s needs could be met in an ALF that is not a medical, nursing, or psychiatric facility. The form stated that R.M. was born in 1934, had dementia, was forgetful, required fall precautions, required daily observation for his well-being and whereabouts, and required daily reminders for important tasks. The form also listed R.M.'s medications, including 81 mg aspirin, 10 mg simvastatin, 25 mg sertraline, and 50 mg hydroxyzine hydrochloride. The form stated that R.M. did not need help with taking his medications and could use a pill box. The form stated that R.M. could make phone calls independently and could prepare meals, shop, and handle personal and financial affairs with assistance. From the discussions and Form 1823, it was clear to the Florida Hospital discharge team that R.M. was being discharged to Avalon's ALF.7/ This also was the clear understanding of Mrs. Fulcher. She had asked for a letter signed by R.M.'s psychiatrist to use when they went to the bank to access R.M.'s funds to pay for the ALF. She thought she would need it to explain to bank officials in the event R.M. acted out. She understood that is what happened when staff of R.M.'s previous ALF, Sunrise, took him to the bank to access his funds, which resulted in his involuntary commitment and admission to Florida Hospital on July 3, 2013. The letter she received stated that R.M. was diagnosed with dementia disorder with behavioral disturbances and mood disorder and was unable to make decisions for daily living. R.M. was discharged to Avalon's ALF on July 23, 2013. Mrs. Carter-Walker and her husband drove to Florida Hospital to pick R.M. up and drive him to the ALF. R.M. got into the vehicle with them, and Mr. Walker drove.8/ Mrs. Fulcher followed in her car. They made a stop at a Walmart to get clothing for R.M. While Mrs. Fulcher was parking her car, the other vehicle parked, and R.M. jumped out and walked quickly or ran into the store, away from Mrs. Carter-Walker and her husband. Mrs. Fulcher went into the store after R.M., who seemed agitated and did not seem to know or trust them. Mrs. Fulcher tried to calm him down and explain the situation to him. It was decided that R.M. should continue on in Mrs. Fulcher's car. They then stopped at a bank to try to access R.M.'s funds to pay Avalon, but they were unsuccessful in doing so because they did not have acceptable identification for R.M. From there, they continued on to Avalon,9/ where Mrs. Fulcher was shown the room R.M. would be staying in, and they discussed R.M.'s medications, which Mrs. Carter-Walker said she would obtain from the pharmacy, and his identification, which Mr. Walker said he would retrieve from Sunrise ALF. The next day, Mrs. Fulcher was supposed to return to the bank with R.M. and his identification to obtain funds to pay Avalon, but she had a family medical emergency and had to fly to Virginia, where she remained for two weeks. When she returned, she tried to contact Avalon by telephone and left messages but did not get a call back from Avalon. On August 22, 2013, R.M. signed a document making Mrs. Carter-Walker his Social Security benefit payee, and she began receiving his Social Security benefits at Avalon. At some point in time, she generated statements showing that Avalon was charging R.M., as "tenant," $774.10 as rent for July 2013 (at the monthly rental rate of $2,000, prorated), and $2,400 for August and September 2013 (at the monthly rental rate of $2,400). While AHCA surveyors were at Avalon on Willow Branch Drive on September 11, 2013, conducting a follow-up survey on the deficiencies noted in July 2013, they learned that R.M. had walked away from Avalon II's ALF on Early Frost Circle, refused to come back when asked by the sole staff on duty at the time, did not return, and could not be found despite an all-out police search. Avalon's staff denied having any knowledge about R.M. and deferred all questions to Mrs. Carter-Walker. Mrs. Carter- Walker took the position that R.M. was not a resident of Avalon. She testified that she conducted her own assessment of R.M. and, without notifying either Florida Hospital or Mrs. Fulcher, determined that he did not require the services of an ALF but could be an independent renter of one of Avalon's unlicensed beds. She showed surveyors a pillbox she said R.M. used independently for his medications. The position taken by Avalon as to R.M.'s status is inconsistent with clear and convincing evidence to the contrary. Myrtus Furbert was the sole staff on duty at Avalon II on September 10, 2013. She testified that R.M. spent the previous night there, having been brought there by Mrs. Carter-Walker with a bag of clothing, but no medications. When Ms. Furbert asked about his medications, Mrs. Carter-Walker told her he had no medications because Avalon was not being reimbursed for them. R.M. had no cell phone, wallet, or personal or ALF identification because Mrs. Carter-Walker did not trust him not to lose them. He also did not have a key to either Avalon on Willow Branch Drive or Avalon II on Early Frost Circle. When R.M. absconded, Ms. Furbert notified Mrs. Carter-Walker, who notified the police, essentially following Avalon's elopement policy for ALF residents. Ms. Furbert also testified convincingly that she and other staff were instructed by Mrs. Carter-Walker to be cautious about discussing potential deficiencies with surveyors and to defer those kinds of questions, and in particular questions regarding R.M., to her. Consistent with that testimony, staff at Avalon told AHCA's surveyors that they knew nothing about R.M., and Ms. Furbert was not forthright initially when questioned about him. Mrs. Carter-Walker testified, and Avalon took the position, that staff did not know anything about R.M. because he was an independent boarder, not an ALF resident. Her testimony and Avalon's position are rejected as implausible and contrary to the clear and convincing evidence to the contrary. R.M. was a resident of Avalon's ALF, notwithstanding Avalon's position to the contrary and its failure to give him the services he should have had. The facts alleged in the deficiency tags arising out of the September 2013 complaint investigation were proven by clear and convincing evidence. October 2013 Complaint Investigation Regarding D.D. Avalon gave excuses for not having the metal staples removed from D.D.'s scalp for over three months. Mrs. Carter- Walker testified that the doctor who came monthly to Avalon's ALF stopped accepting D.D.'s insurance and that she tried to telephone D.D.'s son to get the name of her doctor, got no answer at first, and later talked to him and learned that D.D. had no other doctor. She testified that she then asked the Florida Hospital doctor who placed the staples to remove them, but that doctor declined. She testified that she did not take D.D. to a walk-in clinic or emergency room to have the staples removed because D.D.'s son had a durable power of attorney, and he would have to be present to authorize the removal of the staples. D.D.'s son did not recall getting any telephone calls from Mrs. Carter-Walker before October 10, 2013, and that he first learned about the staples when he went to Florida Hospital the next day. His testimony was clear and convincing and is accepted. Her testimony was self-serving and is rejected, if it was intended to mean that she took appropriate steps to notify the son about the staples and ask him to give consent to have them removed prior to October 10, 2013. The evidence was clear and convincing that it was inappropriate medically for the staples to remain in D.D.'s scalp for three months. Although there was no clear and convincing evidence that the staples caused an infection or that skin grew over them so as to require additional surgery to remove them, both were possible results from leaving the staples in too long. D.D.'s son relied on Avalon to care for his mother. Avalon should have taken appropriate steps to have the staples removed before October 10, 2013. Pattern of Deficient Performance The tags noted in the July 2013 re-licensure survey reflect several relatively minor deficiencies, some little more than paperwork deficiencies, which were corrected promptly. They do not, in themselves, reflect a pattern of deficient performance. The tags from the September 2013 complaint investigation involving R.M. arose from an isolated incident, in that there was no evidence that any resident eloped before or since. However, the tags include more than just an elopement. The deficiencies actually arose from a decision by Mrs. Carter- Walker, whether before or after the elopement, not to treat R.M. appropriately as an ALF resident or provide the ALF services he should have been given, while she and Avalon collected R.M.'s Social Security benefits intended to pay for those services. Avalon's decision was not disclosed to Florida Hospital, to Mrs. Fulcher, or to AHCA. This decision contributed to R.M.'s ultimate elopement. When Avalon's actions were disclosed through R.M.'s elopement, Mrs. Carter-Walker attempted to manage the consequences through her instructions to her ALF staff not to provide certain information to AHCA's surveyors, except through her. The tags from the October 2013 complaint investigation involving D.D. arose from an isolated incident, in that there was no evidence that any resident was medically neglected before or since. However, these deficiencies also arose from a decision by Mrs. Carter-Walker not to provide the ALF services D.D. should have been given. D.D.'s son, who was her health care surrogate, was not kept apprised of D.D.'s medical condition or asked to cooperate in having the metal staples removed from his mother's scalp. Avalon also did not disclose metal staples to AHCA directly or by making reference to them in D.D.'s ALF records. AHCA happened to become aware of them when its surveyors happened to notice the staples while they and Mrs. Carter-Walker were attending to D.D. for an apparent change in her medical condition that occurred while a survey was being conducted. When the staples were noticed and investigated, Mrs. Carter-Walker and Avalon attempted to avoid responsibility by blaming D.D.'s son and her Florida Hospital doctor. The tags arising out of the R.M. and D.D. investigations, while relatively small in number, reflect a troubling pattern of deficient performance involving inadequate supervision and lack of appropriate attention to the needs of ALF residents, together with attempts to hide the deficient performance from family members and AHCA, and the development of an unhealthy relationship with the AHCA surveyors and regulators that has resulted in a mutual lack of trust. Avalon III Amended Final Order Mrs. Carter-Walker had a controlling interest in Avalon and in Avalon III, which applied for a license to operate an ALF at a third location in Orlando. AHCA gave notice of intent to deny the application for licensure on several grounds, including: unlicensed operation of an ALF at 1812 Crown Hill Boulevard in Orlando in July and August 2009; expiration of the applicant's lease on the facility to be licensed; and the disqualification of Mr. Walker, who was a controlling interest, administrator, and financial officer on the application. Avalon III requested a hearing, and a Recommended Order of Dismissal was entered on the ground that Mrs. Carter-Walker and Mr. Walker took the Fifth and declined to answer discovery questions relevant to the grounds for denial of Avalon III's application. As a result, Avalon III essentially chose not to meet its burden to prove entitlement to licensure. The Recommended Order of Dismissal was adopted in an Agency Amended Final Order. Avalon III appealed, and the First District Court of Appeal issued a per curiam affirmance on December 17, 2014. Avalon, etc. v. AHCA, Case 1D13-5972, per curiam aff'd (Fla. 1st DCA Dec. 17, 2014). There was no request for rehearing, and the Mandate issued on January 5, 2015. Id.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order denying Avalon's license renewal application and fining Avalon $5,500. DONE AND ENTERED this 21st day of January, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2015.
The Issue Whether Respondent, Whitehall Enterprises, Inc., d/b/a Villas Des Chenes, discriminated against Matthew Les Foris, deceased, on the basis of his race in violation of 42 U.S.C. Section 3604(a) and/or (b), and Sections 70-77 and 70-176, Pinellas County Code, by not renewing Les Foris’ lease when it expired.
Findings Of Fact Matthew Les Foris, the complainant in this case, was an African-American male and a member of a protected class. Following initiation of the proceedings before the Commission, he passed away on August 23, 2003. Les Foris' granddaughter, Crisella Winder, was appointed as personal representative of his estate, and she was substituted as Petitioner in this matter. Respondent, Whitehall Enterprises, Inc. ("Whitehall or Respondent"), rents dwelling units to the public at various apartment communities in the Clearwater, Florida, area. Among others, Whitehall operates a 38-unit apartment community commonly known by the name Villas Des Chenes Apartments ("Villas Des Chenes"). These units are rented to adults over the age of 55 on a yearly lease basis. Maxine Chartier is general manager and vice-president of Whitehall. She has held this position since 1998, and prior to this position, worked as an assistant to Whitehall’s general manager. James Yopp is the property manager at Villas Des Chenes, as well as at four of the other Whitehall properties in the Clearwater area. He has held this position for about six years, and prior to this position, worked as a maintenance man for the Whitehall properties. He has attended fair housing training. Whitehall does not have a written policy regarding renewals or non-renewal of leases. It does not keep records of incidents at its properties. However, there were regular practices regarding renewals. At Villas Des Chenes, there are fair housing posters in the office and the laundry room describing fair housing practices. They were present when Les Foris lived there and are presently still on display. It was Yopp’s practice to visit Villas Des Chenes on an almost daily basis. He would talk with Chartier nearly every day, reporting events and problems, as needed. The two would discuss what problems there were and, where possible, reach resolutions. Chartier had a process she used in determining when to non-renew a tenancy. She would consider whether there had been problems in the previous year and consider what would work best for the property. Factors considered by Chartier included whether the tenant was unhappy and "bad-mouthing" the company, mistreating staff, getting along with others, doing damage, paying rent late, or an accumulation of those factors. She would rely on what was reported to her by the property manager and her own observations, if any. The ultimate decision to non- renew a tenancy rested with her. On November 13, 2000, Les Foris applied for an apartment at Villas Des Chenes. Yopp accepted the application, along with Les Foris’ advance payment of $200.00. The application was approved, and Les Foris and Respondent entered into a lease for a one-year term commencing December 1, 2000, and ending November 30, 2001. The leasing procedure for Les Foris was the same as that used for other tenants. Approximately 30 days prior to the end of the initial lease’s term, Yopp offered to renew the lease for another one- year term. Yopp and Les Foris signed a renewal on November 30, 2001. Under the terms of the renewal, the lease term was to end on November 30, 2002. Neither the lease nor the renewal provides for an automatic renewal of its terms. Beginning sometime in May 2002, management noticed problems involving Les Foris’ tenancy. In May 2002, Yopp received a call from a tenant who reported that Les Foris was upset with another resident. Yopp subsequently talked with Les Foris, and he complained about an upstairs neighbor on two occasions. Yopp could see no evidence of the causes for the complaints by Les Foris. A couple of days later, Les Foris complained again about the same neighbor. This time, Les Foris threatened to harm the neighbor. Yopp told Les Foris that such conduct by Les Foris would be inappropriate. Although Yopp had handled numerous tenant squabbles during his career as property manager, in none of them had a tenant threatened to harm someone. However, after this incident, Les Foris and the neighbor had no further problems. Subsequently, the neighbor moved out of the complex for unrelated reasons. In addition, Les Foris repeatedly parked his car in spaces not reserved for him. On an almost daily basis when he was not working, Les Foris would park his car in spaces reserved for other tenants. The tenants would call Yopp, who would then ask Les Foris to move the car. Les Foris would then return his car to his proper parking space. The next day, the scenario would repeat itself. Les Foris would explain that he was moving his car so that it could be in the shade. Yopp told Les Foris that such conduct was inappropriate. Yopp testified that he received complaints from two residents about Les Foris. The complaints were from Ruth Poetter and Carmella Eichen. Each of the women complained that Les Foris made them feel uncomfortable, without offering greater explanation. It was a customary practice for many of the residents at Villas Des Chenes to sit outside their units at tables and chairs. Poetter followed this custom. About the time of her complaint to Yopp, Yopp observed that Poetter ceased sitting outside. When Yopp visited the property, Les Foris would complain about Whitehall. Ralph Agliano, a former tenant of Villas Des Chenes, testified that Les Foris would routinely complain about things, and Agliano would attempt to explain them. Yopp reported all problems, including those involving Les Foris, to Chartier. On or about September 15, 2002, Yopp delivered a notice to all tenants, including Les Foris, regarding proposed rent increases that management intended to implement beginning in December 2002. The delivery of that notice was not triggered by the end date of any tenant’s lease and was not an offer to renew. As of September 15, 2002, when the notice about proposed rent increases was delivered to all tenants, no decision had yet been made to renew or not renew Les Foris’ lease. Yopp and Chartier subsequently discussed whether to renew Les Foris’ lease. Chartier decided that, based on the complaints relayed to her about Les Foris in the preceding months, Les Foris' lease would not be renewed when it expired at the end of November 2002. Chartier felt that it was not in the best interest of Whitehall to continue with a tenant who was unhappy with the company, made a threat to harm another tenant, and who made other residents uncomfortable. She did not want the residents of Villas Des Chenes to be afraid. It was an accumulation of things that formed her decision. This process by Chartier, as applied to Les Foris, was the same as that which she used for others. Yopp prepared and issued a notice of non-renewal to the tenant. The notice did not set forth a reason for the non- renewal. Yopp admitted that other tenants also parked in parking spaces other than those assigned to the tenant. In addition, it is anticipated that other tenants have disputes with their neighbors. In the six years Yopp had been property manager at the complex, no residents were non-renewed specifically for either reason. When Les Foris received the notice, he became upset. He asked Yopp to explain the reason for the decision. Yopp declined to give an explanation. In the year that Les Foris received his notice of non-renewal, Yopp delivered notices of non-renewal to three other tenants. In none of them did Yopp give a reason for the non-renewal. The notice of non-renewal given to Les Foris did not differ in form or substance from that used for other tenants. Les Foris spoke with Chartier by phone about the non-renewal. Les Foris asked Chartier the reason for the non-renewal. Chartier also declined to give one stating that she was not required to give a reason. At the hearing, Chartier explained that it was her practice not to explain the reasons for non-renewals. Because the lease did not require a reason, she did not offer one. Discussions about the reasons for non- renewal often lead to arguments and to Chartier, they serve no purpose. During the phone conversation, Les Foris requested reconsideration and, if that failed, then additional time to find a new place to live. He explained to Chartier that he lacked funds and had no one to help him move. Chartier offered to allow some extra time to remain on the premises and to make an early refund of the security deposit. Chartier returned the security deposit to Les Foris by way of a letter dated November 15, 2002. Les Foris filed his complaint of housing discrimination on November 7, 2002. Chartier learned of it after sending him the November 15, 2002, letter. Les Foris moved out of Villas Des Chenes in November 2002. Winder had lost touch with her grandfather for sometime and had "found" him only about two years prior to his death. At the time she formed a bond with Les Foris, he was a tenant at Villas Des Chenes. Les Foris was happy there because he resided close to Winder and her children and was within walking distance of the grocery store where he worked part-time. Winder testified that when Les Foris was informed of the non-renewal, he became upset. He expressed to her his distress at being made to move. However, she helped him find a new apartment and helped him move. Winder found movers and paid them on Les Foris' behalf. She also arranged for storing his property in a commercial facility. The move cost less than $400.00. The rent was higher at the new complex, where Les Foris lived for just a few months before becoming ill. Winder saw her grandfather regularly after he received the non-renewal notice. He frequently called her after having anxiety problems at his new apartment. Les Foris was disoriented about the location of items in his new apartment. He was definitely inconvenienced by the move. He was also humiliated and ashamed in front of his neighbors for being forced to move out. His daily routine was disrupted, and he was unable to make friends at the new complex.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Administrative Law Judge will enter a final order dismissing Petitioner, Crisella Winder, as the Personal Representative of the Estate of Matthew Les Foris’ Petition for Relief for failure to prove a case of housing discrimination against Respondent, Whitehall Enterprises, Inc., d/b/a Villas Des Chenes, after the period for submission of exceptions has expired. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 17th day of December, 2004. COPIES FURNISHED: Leon W. Russell, Human Rights/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue Fifth Floor Clearwater, Florida 33756 W. Oliver Melvin, Compliance Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue Fifth Floor Clearwater, Florida 33756 Matthew P. Farmer, Esquire Farmer & Fitzgerald, P.A. 708 East Jackson Street Tampa, Florida 33602 Lynn Hanshaw, Esquire Gulfcoast Legal Services 314 South Missouri Avenue, Suite 109 Clearwater, Florida 32756 Cathy L. Lucrezi, Esquire Law Offices of Heist, Weisse & Lucrezi, P.A. 1661 Estero Boulevard, Suite 20 Post Office Box 2514 Fort Myers Beach, Florida 33932
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue Whether Petitioner received notice of the March 29, 2006, Notice of Hearing that complied with the legal requirements for being provided notice.
Findings Of Fact The Notice of Hearing which scheduled the hearing for March 29, 2006, was issued on February 14, 2006. There is nothing on the docket that indicates that the Notice of Hearing mailed to Petitioner was returned as undeliverable.1/ Michelle Girard-Smith is employed as a receptionist at McLin & Burnsed, P.A., located at 1000 West Main Street, Leesburg, Florida. This is the address on the Notice of Hearing which set the hearing for March 29, 2006. According to Ms. Girard-Smith, Petitioner came to the hearing location on Wednesday, March 22, 2006, one week earlier than the scheduled date for the hearing. Petitioner had the Notice of Hearing in his hand and showed it to Ms. Girard-Smith. She pulled out the conference room calendar and noted that the calendar showed the conference room was scheduled for the hearing on Wednesday, March 29. She pointed out to Petitioner that he was there a week early. While Petitioner acknowledges that he arrived at the hearing location on a date earlier than the scheduled day, he asserts that he arrived on Friday, March 24, 2006. He also asserts that he went back to the hearing location one week later on Friday, March 31, 2006. The undersigned finds the testimony of Ms. Girard-Smith to be more persuasive. She was certain that Petitioner had the Notice of Hearing in his hand when he arrived on March 22, 2006, and that she showed him that he was one week early. Petitioner received actual notice of the March 29, 2006, hearing.
Recommendation Based upon the foregoing Findings of Fact and the Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Public Accommodation Discrimination. DONE AND ENTERED this 18th day of September, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 18th day of September, 2006.
