The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
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: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, 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 28th day of May, 2014.
The Issue The issue is whether Respondent, Soler and Palau USA Ventilation Systems, LLC (“Soler & Palau”), discriminated against Petitioner based upon his race or color, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Soler & Palau is an employer as that term is defined in section 760.02(7). Soler & Palau is mainly in the business of manufacturing and supplying fans and other recovery ventilators to various industries, including residential, commercial, industrial, and institutional buildings. Petitioner, a black male, was hired at Soler & Palau as a Crater I in the distribution department at the company’s B-2 warehouse facility on July 21, 2014. Petitioner was interviewed and hired by Soler & Palau’s warehouse distribution manager, Tracy Noble, who is a white female. As a Crater I, Petitioner was responsible for fabricating wooden crates or boxes, using woodworking hand tools and power tools, around the items (mostly industrial fans and accessories) to be shipped. Crater I was the entry level position at Soler & Palau’s warehouse. Petitioner was the only Crater I at the B-2 facility, but most, if not all, of the other employees at B-2 had started at the Crater I position and understood its duties and job requirements. Eight employees worked under Ms. Noble at the B-2 facility. Six of those employees were black and two were white. Ms. Noble testified that training as a Crater I normally takes about 90 days, and that Petitioner was fully trained. She testified that, although it is an entry level position, Crater I is very important because Soler & Palau’s customers order fans specific to their needs and the crater is responsible for making sure the right fan goes in the crate. Many Soler & Palau customers are restaurants that cannot open if the correct equipment is not in place. Some building codes require specific fans. Each Soler & Palau fan has a specific drive pack that provides the horsepower to move a specific amount of air. Two fans may look the same but have very different capabilities. One fan may meet code for a specific purpose and one may not. It was Petitioner’s responsibility to review the orders, which listed everything that should go into the package by part number. Petitioner would pull the corresponding fan, and any accessories (such as a damper or speed controls), and place them on a pallet. Petitioner would then build the crate around the fan. He would weigh the order, record the weight and dimensions of the package, and turn that information over to the shipping clerk, who would print the shipping documents and labels for Petitioner to affix to the package. Petitioner would place the labels on the fan, again making sure that all numbers matched and that he had the correct fan. Petitioner would then send out the order. On May 19, 2015, nearly 10 months after his hiring, Petitioner pulled and shipped the wrong product to a customer. On June 2, 2015, Petitioner again shipped the wrong product to a customer. The product was needed by another customer immediately. At its own expense, Soler & Palau rushed another order to that customer. As a consequence of his errors, Petitioner received an informal warning from Ms. Noble on June 8, 2015. On the same date, Ms. Noble sent an email to human resources administrator Krissy Velleca (née Carter) requesting that the informal warning be noted in Petitioner’s employee file. Ms. Noble wrote that the company was going through a transition to new fans that were very similar to the old ones, and that she counseled Petitioner “to double-check and triple-check himself until the transition is complete.” She wrote that Petitioner agreed to watch his work more closely and that she had asked a couple of other employees to check behind him “until we are all used to the changes.” Finally, Ms. Noble wrote that she did not want to issue a formal warning to Petitioner because of all the recent changes and that she would watch Petitioner to make sure the problem did not repeat itself. Ms. Noble testified that she had three different people attempt to retrain Petitioner, out of concern that he was not catching on to the job because of the manner of his original training. On June 19, 2015, Petitioner again made a mistake on an order by placing the wrong part number and wrong order identification on the shipment. Soler & Palau incurred additional freight and expedited UPS charges in correcting Petitioner’s mistake. The company also had to deal with a disappointed customer who had been mistakenly informed that their shipment was in transit. On June 22, 2015, Ms. Noble issued a formal written warning to Petitioner for the June 19 incident. The warning statement read as follows: This statement will serve as a verbal warning for Poor Workmanship in accordance with Section 3.26 of the Employee Handbook. Gus[3/] is required to always verify that the fan tag matches the order acknowledgement with both the order and part number. Both of these orders were entered 06/19/15 with a “same day” shipping request that did put additional workload and time pressures on the crew, but this is one step that cannot be skipped. In accordance with the company handbook, any future occurrences of this same offense can result in a written warning, (3) days suspension and/or termination. Petitioner signed the statement, acknowledging that he had read and understood the formal written warning. Ms. Noble testified that Petitioner was again provided additional training. On July 20, 2015, Ms. Noble completed Petitioner’s annual performance review. She noted that Petitioner needed improvement in the quality of his work and in his knowledge of the technical aspects of his job. She further noted that Petitioner’s attendance and punctuality verged on an “unsatisfactory” rating. In spite of Petitioner’s spotty evaluation, Ms. Noble recommended him for the full three percent raise available to Soler & Palau employees upon their annual reviews. In an email to Ms. Velleca and vice president of operations, Greg Johnson, Ms. Noble explained her rationale as follows: Please see attached for Gus’ annual review. You may question why I am giving him the full 3% when I didn’t give him a great review. All of his attendance issues have stemmed from transportation issues as far as I remember. I know it must be hard to do anything about that situation when he is barely making enough to live on. I’m hoping it will make a difference in what he is able to do to remedy his attendance problems. I don’t think there would have been these issues if there were bus service offered here, but that is not currently available. Please let me know if this seems out of line. He is currently at the minimum for his position, so it is not an overly generous move. Please let me know if you see anything else that needs to be clarified or changed. Mr. Johnson responded, “I am fine with your decision and reasoning.” At the hearing, Ms. Noble testified that she knew Petitioner had trouble getting to work. She thought that if he were making enough money to get his truck repaired, his attendance issues would stop and he would feel less stress and make fewer mistakes on the job. Ms. Noble stated that she does not like firing people because it causes disruption to the operation and means that she has to hire and train a new person, who may or may not turn out to be a good employee. She was willing to do everything she could to improve Petitioner’s deficiencies because he did a good job most of the time. On September 3, 2015, while Ms. Noble was on vacation, Mr. Johnson discovered that Petitioner had once again shipped the wrong product to a customer. Mr. Johnson sent an email to Ms. Velleca inquiring about Petitioner’s hiring date and job responsibilities. He wrote, “I ask because he just made a significant mistake in pulling 2 fans for shipment. I need to dig into how he was trained, are we asking him to do something outside his expected responsibilities, etc.” Ms. Velleca testified that she investigated to make sure that Petitioner was on the job when the error occurred and that a fill-in had not made the mistake. She stated that she and Mr. Johnson did not want to take action against Petitioner if the error was not his fault. She ultimately determined that Petitioner had made the error. Ms. Velleca testified that the B-2 facility had historically been graded as 100 percent efficient and 99 percent error-free by the parent company in Spain. Petitioner’s errors were affecting B-2’s overall performance. The parent company was starting to notice a falloff in customer orders and the additional freight costs attributable to correcting Petitioner’s errors. Upon returning to work, Ms. Noble began her own investigation of the mistake, which involved Petitioner’s mixing up two fans for shipment. On the same day, Ms. Noble caught Petitioner making yet another error by placing the wrong tags on a fan. Though she caught this mistake on the warehouse floor before the fan shipped, Ms. Noble decided that Petitioner had made too many mistakes and that he should be terminated from employment with Soler & Palau. On September 18, 2015, Petitioner was called to Ms. Noble’s office and provided with a separation notice from Soler & Palau. The stated reason for his discharge was unacceptable performance of his job duties. At the hearing, Petitioner testified that he believed he was fired because he did not volunteer for overtime work. He believed that the errors of which he was accused were the fault of other employees and constituted a pretext for his dismissal. Specifically, Petitioner blamed two delivery truck drivers for the erroneous deliveries. They were Gevon Campbell, who was black, and a white driver whom Petitioner knew only as Mike. Petitioner claimed that these drivers were charged with checking the orders and ensuring that they are correct. Aside from his claim, Petitioner offered no evidence that the delivery drivers were responsible for checking the orders. Ms. Noble persuasively described Petitioner’s Crater I job as inclusive of ensuring that the correct items go into the crates. Petitioner also alleged that a wiring technician named Dave Boyin told him that when he worked as a crater, he made many mistakes on the job but was nonetheless promoted to a higher position. Mr. Boyin is white. He did not testify at the hearing. Ms. Noble testified that she promoted Mr. Boyin to wiring technician because he was doing a good job as a crater. She stated that Mr. Boyin made errors during his 90-day training period, as does any trainee, but that he made no mistakes as a crater after his training period was over. Ms. Noble’s testimony was persuasive. At the hearing, Petitioner’s testimony was mostly directed toward making a case of wrongful termination, not racial discrimination. At the conclusion of Petitioner’s testimony, the undersigned counseled Petitioner that the jurisdiction of this tribunal was limited to his discrimination claim. In response, Petitioner stated, “I don’t think it was race. I don’t really think it was race, you know what I’m saying?” Petitioner continued to insist that he was fired for refusing to work overtime. Even if Petitioner’s insistence on this point were credited, it would not establish that he had been discriminated against because of his race or color.4/ Petitioner offered no credible evidence that Soler & Palau discriminated against him because of his race or color in violation of section 760.10.
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 finding that Soler and Palau USA Ventilation Systems, LLC, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 21st day of March, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 March, 2017.
The Issue The issue is whether Respondent, Steak n Shake Restaurant (“Steak n Shake”), violated section 760.08, Florida Statutes,1/ by discriminating against Petitioner based on his race.
Findings Of Fact Petitioner is a white male who lives in Ormond Beach, Florida. Petitioner testified that he had been a regular customer of the Steak n Shake at 120 Williamson Boulevard in Ormond Beach for about four years. Petitioner entered the restaurant on March 30, 2015, and was seated by server Amanda Hobbs, a black female. Petitioner testified that neither Ms. Hobbs nor any other server would wait on him. He saw Ms. Hobbs take the order of a black couple who came into the restaurant after he did. Petitioner complained to the manager, Mark Regoli, a male of mixed race. Petitioner testified that he told Mr. Regoli that the service had been poor for several months, and complained about not being served on this occasion. Petitioner stated that Mr. Regoli accused him of being “loud,” but explained that he is hearing-impaired and may sometimes speak in a loud voice. Petitioner testified that Mr. Regoli became angry, “got up in my face,” and blocked Petitioner from leaving the restaurant. Petitioner testified that he left the restaurant. It was only later that he learned that the police had been called by someone at Steak n Shake. Counsel for Steak n Shake did not cross-examine Petitioner. Steak n Shake called no witnesses. Steak n Shake’s documentary evidence consisted of hearsay witness statements that cannot be considered in the absence of admissible evidence that the hearsay may be said to supplement or explain. Therefore, Petitioner’s narrative is the only sworn, admissible evidence before this tribunal. Though Petitioner’s testimony was clearly a self-serving version of the events that occurred at the Steak n Shake on March 30, 2015, it is the only version of events that may be considered under the rules of evidence. Petitioner’s testimony lacks complete credibility only when one compares it with the excluded witness statements of the Steak n Shake employees. If one considers Petitioner’s testimony standing alone, as this tribunal must, the worst one can say is that it is one-sided and incomplete. This state of affairs is not the fault of Petitioner, who was under no obligation to tell anything other than his side of the story. Petitioner represented himself and so is not entitled to attorney’s fees. Petitioner may be entitled to an award of costs.
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: Finding that Respondent, Steak n Shake Restaurant, committed an act of public accommodations discrimination against Petitioner, Virgil W. Phillips; Prohibiting any future acts of discrimination by Respondent; and Awarding Petitioner his costs. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 29th day of April, 2016.
The Issue Whether Respondent discriminated against Petitioner because of his race, sex or religion.
Findings Of Fact Respondent owns and operates the Valu-Lodge Motel located at 4810 West Highway 98, Panama City Beach, Florida. The motel offers rooms for rent to the public and is a "transient public lodging establishment" within the meaning of Florida Statutes. Petitioner is a white male. His national origin is American. Although Petitioner’s complaint and petition indicate that Petitioner espouses to be a member of the Church of Christ, there was no evidence presented at the hearing regarding Petitioner’s religion. On September 9, 2004, Petitioner rented a motel room from Respondent at its Panama City Beach motel. The rental term was week to week. At some point, Respondent felt Petitioner had become disruptive to the operation of the hotel and to its guests. On November 25, 2005, Respondent informed Petitioner that it would no longer rent a room to Petitioner and hand-delivered a Notice of Termination of Lease to Petitioner. The Notice stated that Petitioner must vacate the premises by December 1, 2005. Petitioner refused to vacate the motel premises. On December 9, 2005, Respondent hand-delivered a Fifteen Day Notice for Possession of Premises to Petitioner. The Notice indicated that no further rent would be accepted. Petitioner again refused to vacate the premises. Petitioner also did not pay any further rent to Respondent. Respondent filed an eviction proceeding against Petitioner. The first and second eviction proceedings appear to have been dismissed for procedural reasons. However, the third eviction proceeding was successful. During that proceeding, Petitioner had the opportunity to defend against eviction based on the claims of discrimination raised in this matter. However, on June 22, 2007, after hearing, Respondent received a final judgment, awarding the Intown Companies, Inc., $19,213.18 in unpaid rent, plus interest. Respondent also received a Final Judgment of Eviction awarding the Company possession of the premises and court costs. A Writ of Possession was issued on June 25, 2007, and Petitioner vacated the premises on June 27, 2008. There was no evidence presented by Petitioner that demonstrated Respondent discriminated against Petitioner in any manner. There was absolutely no evidence of any racial, nationalistic or religious bias on the part of Respondent. Apparently, Petitioner believes that he is entitled to rent a room from Respondent simply because he is a member of the public and desires to rent a room from Respondent. Neither the facts, nor the law supports Petitioner’s misinformed view of the view of the law. Given the utter lack of evidence presented by Petitioner, the Petition for Relief should be dismissed.
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 the Petition for Relief. DONE AND ENTERED this 3rd day of September 2008, 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 3rd day of September 2008. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Alan Johnson 20417 Panama City Beach Parkway No. 8 Panama City Beach, Florida 32413 Melton Harrell, Authorized Agent The Intown Companies, Inc. d/b/a Valu Lodge American Motel Management, Inc. 2200 Northlake Parkway S-277 Tucker, Georgia 30084-4023
The Issue Whether Petitioner’s application for change of ownership should be granted or denied on the basis of the allegations set forth in the Second Amended Notice of Intent to Deny (“Second Amended NOID”).
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the prehearing stipulation. Parties The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALFs”) and enforcement of applicable state statutes and rules governing assisted living facilities pursuant to chapters 408, part II, and 429, part I, Florida Statutes, and chapters 58A-5 and 59A-35, Florida Administrative Code. In carrying out its responsibilities, AHCA conducts inspections (commonly referred to as surveys) of licensed ALFs to determine compliance with the regulatory requirements. The Agency’s evaluation, or survey, of an ALF may include review of resident records, direct observations of the residents, and interviews with facility staff persons. Surveys may be performed to investigate complaints or to determine compliance as part of a change of ownership process. While the purpose of the survey may vary, any noncompliance found is documented in a standard Agency form entitled “Statement of Deficiencies and Plan of Correction (“Statement of Deficiencies”).2/ The form is prepared by the surveyor(s) upon completing the survey. Deficiencies are noted on the form and classified by a numeric or alphanumeric identifier commonly called a “Tag.” The Tag identifies the applicable regulatory standard that the surveyors use to support the alleged deficiency or violation. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and severity of the deficiency. Dixie Lodge submitted an application seeking to change ownership of its facility in July 2015 and was issued a provisional license to operate Dixie Lodge as an ALF. At all times material hereto, Dixie Lodge was an ALF under the licensing authority of AHCA. Dixie Lodge has been licensed under previous owners for approximately 30 years. To date, Dixie Lodge operates a 77-bed ALF with limited mental health specialty services. AHCA conducted surveys of Dixie Lodge as it related to Dixie Lodge’s CHOW application, commonly referred to as a CHOW survey. The Agency conducted two surveys of Dixie Lodge’s assisted living facility. The Agency conducted a CHOW survey on September 9, 2015. On November 6, 2015, the Agency conducted a follow-up survey to determine whether Dixie Lodge had corrected cited deficiencies. AHCA’s surveyors documented deficiencies and cited Dixie Lodge for violating statutory and rule requirements in several areas of operation. The deficiencies are incorporated in the Statement of Deficiencies, which were prepared after each survey. When a CHOW survey reveals deficiencies, the Agency can deny the upgrade from a provisional license to a standard license. If a provider has three or more Class II violations, such as alleged in this matter, the Agency may deny the upgrade to a standard license. A Class III violation warrants a follow- up visit to give the licensee or applicant an opportunity to fix the alleged deficiency. The Agency may also consider the severity of the violation. Allegations Regarding Class II Deficiencies The AHCA surveyor, Lesly Linder, who participated in the CHOW survey on September 9, 2015, found several deficiencies. As set forth in the Statement of Deficiencies for September 9, 2015, Dixie Lodge was cited for three Class II deficiencies in the following areas: (Tag A0025) resident care- supervision; (Tag A0032) resident care-elopement standards; and (Tag A0165) risk management and quality assurance. Tag A0032: Resident Care and Supervision Resident care and supervision is addressed in section 429.26(7) as follows: (7) The facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition. Resident care and supervision is also adressed in Florida Administrative Code Rule 58A-5.1082(1) as follows: An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: Monitoring of the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the resident. Maintaining a general awareness of the resident’s whereabouts. The resident may travel independently in the community. Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. During the survey, the surveyor reviewed a sampling of 18 residents’ records, and interviewed several facility employees. The allegations regarding resident care supervision were related to Resident No. 16 and Resident No. 17. During the survey on September 9, 2015, Ms. Linder interviewed Employee A and documented in the Statement of Deficiencies that the employee stated that “Resident No. 16 had wandered from the facility about five months ago and the police returned him to the facility.” Based on Employee A’s statement, it was determined that Resident No. 16 engaged in elopement approximately five months prior to Petitioner assuming ownership of the facility. Ms. Lindner documented the elopement of Resident No. 16 as a deficiency, even though Petitioner was not the owner of the facility at that time. When asked whether AHCA is seeking to hold Petitioner responsible for the purported elopement of Resident No. 16, AHCA’s field office manager, Mr. Dickson, stated, “I don’t believe so.” The evidence presented at hearing demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. The surveyor also interviewed Employee F on September 9, 2015. During the interview, Employee F told the surveyor that Resident No. 17 had left the facility without notifying staff. Specifically, Dixie Lodge maintained a “Report Book,” which included documentation of incidents during each shift. In the book, the staff documented that on September 3, 2015, they had not seen Resident No. 17 on the property for the entire day. The staff then documented their efforts to locate Resident No. 17. Staff documented that they called the hospital and the local jail to determine the location of Resident No. 17. After these calls, the staff contacted law enforcement and law enforcement returned Resident No. 17 to the facility. Based on the evidence of record, there was sufficient evidence to demonstrate that the Dixie Lodge staff had a general awareness of the whereabouts of Resident No. 17. A review of the Report Book revealed that Resident No. 17 had also eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. At that time, the timeline for a one-day adverse incident had not expired. The surveyor interviewed the then administrator for Dixie Lodge and she disclosed that the facility does not have contact information for next of kin or a case manager for Resident No. 17. Even if the administrator had the contact information, Dixie Lodge would not be required to contact them (regarding the elopement), unless the resident was discharged or had moved out. Here, Resident No. 17 had eloped but returned to the facility. Tag A0032: Elopement Standards Elopement is when a resident leaves a facility without following facility policies and procedures and without the knowledge of facility staff. The elopement standards are described in rule 58A- 5.0182(8), which provides as follows: (8) ELOPEMENT STANDARDS Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. As part of its resident elopement response policies and procedures, the facility must make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention must be directed towards residents assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease or related disorders assessed at high risk. At a minimum, the facility must have a photo identification of at risk residents on file that is accessible to all facility staff and law enforcement as necessary. The facility’s file must contain the resident’s photo identification within 10 days of admission or within 10 days of being assessed at risk for elopement subsequent to admission. The photo identification may be provided by the facility, the resident, or the resident’s representative. Facility Resident Elopement Response Policies and Procedures. The facility must develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures must provide for: An immediate search of the facility and premises, The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities, The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and, The continued care of all residents within the facility in the event of an elopement. AHCA alleged that Dixie Lodge failed to follow its elopement policies and procedures for Resident Nos. 16 and 17. The Statement of Deficiencies also alleged that Dixie Lodge failed to ensure that at least two elopement drills per year had been conducted with all staff at the facility. Regarding Resident No. 16, evidence of record demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. Although the elopement occurred before Petitioner assumed ownership of the facility, Resident No. 16 was designated as being at risk for elopement. As such, the facility was required to have photo identification (ID) on file for the Resident. Investigation by the AHCA surveyor revealed that there was a photo on file but that it was of such poor quality that the photo was not readily recognizable. The surveyor did not provide further description of the photo. Dixie Lodge’s owner, Jeff Yuzefpolsky, testified that because Resident No. 16 had been incarcerated, his picture would be immediately accessible, if needed, from the Department of Corrections’ inmate database, and that Mr. Yuzefpolsky was familiar with accessing such photographs. While there was testimony offered regarding the photo, the photo was not offered into evidence. Based on the evidence in the record, the undersigned finds there was not sufficient evidence to demonstrate that Dixie Lodge failed to maintain a photo ID for Resident No. 16. Regarding Resident No. 17, Dixie Lodge had an elopement policies and procedure manual and the staff followed their policies and procedures as it relates to Resident No. 17. Regarding the elopement drills, Ms. Walker discovered documentation of two elopement drills. While the drills did not include record of the staff who participated, there is not a requirement for such in the elopement standards. Dixie Lodge met the requirement by completing the drills and maintaining documentation of the drills. The undersigned finds that the citation for deficiency Tag A0032, a Class II deficiency, was not supported by the evidence in the record. Tag A0165: Risk Management-Adverse Incident Report AHCA also alleged that Dixie Lodge failed to prepare and file adverse incident reports. Each ALF is required to file adverse incident reports as set forth in section 429.23, which, in pertinent part, provides: Every facility licensed under this part may, as part of its administrative functions, voluntarily establish a risk management and quality assurance program, the purpose of which is to assess resident care practices, facility incident reports, deficiencies cited by the agency, adverse incident reports, and resident grievances and develop plans of action to correct and respond quickly to identify quality differences. Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means: An event over which facility personnel could exercise control rather than as a result of the resident’s condition and results in: Death; Brain or spinal damage; Permanent disfigurement; Fracture or dislocation of bones or joints; Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives; Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or An event that is reported to law enforcement or its personnel for investigation; or Resident elopement, if the elopement places the resident at risk of harm or injury. Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident. Licensed facilities shall provide within 15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident. Rule 58A-5.0241 identifies the requirements for filing adverse incident reports as follows: INITIAL ADVERSE INCIDENT REPORT. The preliminary adverse incident report required by Section 429.23(3), F.S., must be submitted within 1 business day after the incident pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. FULL ADVERSE INCIDENT REPORT. For each adverse incident reported in subsection (1) above, the facility must submit a full report within 15 days of the incident. The full report must be submitted pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. AHCA alleged that Dixie Lodge was required to file an adverse incident report for elopement incidents involving Resident Nos. 16 and 17 and an injury related to Resident No. 3. During the survey, the surveyor observed Resident No. 3 with a one-inch laceration above his left eye that was covered in dried blood. On September 9, 2015, at 12:14 p.m., the surveyor conducted an interview of Employee A. The surveyor asked the assistant administrator about the laceration on Resident No. 3’s eye. The assistant administrator responded that she learned of the injury at 10:30 a.m. AHCA took issue with the lack of an adverse incident report. However, the timeframe for preparing and filing a report had not expired. Thus, AHCA did not demonstrate by clear and convincing evidence the alleged deficiency for failure to file an adverse incident report regarding Resident No. 3. As referenced above, the adverse incident requirements related to Resident No. 16 should not be imputed to Petitioner, as Petitioner was not the owner of Dixie Lodge at the time of the incident that would trigger the compliance requirement. At the time of the survey, approximately five days after Resident No. 17 eloped, there was no documentation that a one-day adverse incident report had been filed. The elopement required a one-day adverse incident report because Resident No. 17 eloped and the incident involved law enforcement. Thus, a citation for failure to complete an adverse incident report for the September 3, 2015, elopement incident involving Resident No. 17, a Class II violation, is supported by clear and convincing evidence. A review of the Report Book also revealed that Resident No. 17 had eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. Although Resident No. 17 had eloped, the timeline for a one-day adverse incident report had not expired. Thus, the Class II citation for failing to file a one-day adverse incident report for the September 8, 2015, elopement incident involving Resident No. 17 incident was not supported by the evidence. Allegations Regarding Class III Deficiencies In addition to the Class II deficiencies, the surveyor cited 18 Class III deficiencies in the following areas: (A0008) admissions-health assessment; (A0026) resident care- social and leisure activities; (A0029) resident care-nursing services; (A0030) resident care-rights and facility procedures; (A0052) medication-assistance with self-administration; (A0054) medication-records; (A0056) medication-labeling and orders; (A0076) do not resuscitate orders; (A0077) staffing standards-administrators; (A0078) staffing standards-staff; (A0081) training-staff in-service; (A0082) training-HIV/AIDS; (A0083) training-first aid and CPR; (A0090) training-do not resuscitate orders; (A0093) food service-dietary standards; (A0160) records-facility; (A0161) records-staff; and (A0167) resident contracts. Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” On September 17, 2015, AHCA sent Dixie Lodge a Directed Plan of Correction (“DPOC”). However, the DPOC was not offered at hearing. There was testimony regarding the content of the DPOC, but that testimony alone, without corroborating admissible evidence, is not sufficient to support a finding of fact regarding Petitioner’s failure to comply with the DPOC. The Findings of Fact below are made regarding the Class III deficiencies alleged in subsection 2, paragraph 1, of the Seconded Amended NOID. Tag A0008: Admission-Health Assessment AHCA alleged that Dixie Lodge failed to ensure that it obtained and maintained complete health assessments for Dixie Lodge residents. Specifically, the Amended NOID alleged that the files for two residents were missing health assessments. The first resident, Resident No. 16, allegedly had been re-admitted after a seven-month absence from the facility without an updated health assessment. While the readmission and the initial timeframe for updating the health assessment expired before Petitioner took possession of the property, the facility was responsible for updating the records so information is available for the facility to determine the appropriateness of the resident’s continuous stay in the facility. There is clear and convincing evidence to demonstrate that Dixie Lodge violated Tag A008 and that it indirectly or potentially poses a risk to patients. Tag A0026: Resident Care-Social and Leisure Activities AHCA alleged that Dixie Lodge failed to ensure that residents were provided a minimum weekly number of hours of leisure and social activities. The logbook reflected there were no activities offered during the month of September 2015. There is sufficient evidence to demonstrate that Dixie Lodge failed to provide a minimum weekly number of hours of leisure and social activities. Dixie Lodge’s failure to provide leisure and social activities constitutes an indirect or potential risk to residents. Tag A0029: Resident Care-Nursing Services AHCA alleged that Dixie Lodge failed to ensure that it provided nursing services as required for resident care by permitting a certified nursing assistant to change wound dressings instead of a nurse. The certified nursing assistant did not testify, nor did the administrator. Therefore, there was no admissible evidence to support the allegation. Tag A0030: Resident Care-Rights and Facility Procedures AHCA alleged Dixie Lodge failed to ensure residents’ rights were addressed. Specifically, it is alleged that residents had grievances regarding not being paid for gardening labor performed, and Dixie Lodge’s then administrator acknowledged those grievances. In addition, a resident reported a grievance regarding the resident’s roommate. The administrator acknowledged the grievances and admitted the grievances were not documented. As a result, Dixie failed to ensure residents’ rights were implemented. Tag A0052: Medication-Assistance/Self-Administration AHCA alleged that Dixie Lodge failed to ensure that it provided assistance with self-administration of medications for residents. Specifically, Dixie Lodge failed to assist a resident with self-administration of Depakene (an anti-seizure medication). The resident self-administered two doses of the medication without assistance. As a result, Dixie Lodge failed to meet the parameters for self-administration. Tag A0054: Medication-Records AHCA alleged that Dixie Lodge failed to maintain accurate and up-to-date medication observation records for residents receiving assistance with self-administration of medications by failing to properly document medication administration. The medication administration records were not offered at hearing. However, the surveyor testified about her observations while conducting the survey. Dixie Lodge did not dispute her testimony. Thus, the evidence was clear and convincing that Dixie Lodge failed to maintain accurate and up- to-date medication observation records related to administration of anti-psychotic medications. Tag A0056: Medication-Labeling and Orders AHCA alleged that Dixie Lodge failed to ensure that it complied with requirements to take reasonable steps to timely re-fill medication prescriptions for residents. It was further alleged that Dixie Lodge had not scheduled a face-to-face visit for a patient as required to obtain a prescription refill. However, there were no records offered at hearing to support the allegations. The surveyor’s testimony was based on an interview she conducted with a resident and her review of medical records, which was not corroborated by any admissible evidence. There is no clear and convincing admissible evidence in the record to support the violation. Tag A0076: Do Not Resuscitate Orders AHCA alleged that Dixie Lodge failed to develop and implement a policy and procedure related to “Do Not Resuscitate Orders (“DNRs).” The AHCA surveyor relied upon statements made during an interview by phone of Dixie Lodge employees. The employees interviewed did not testify at hearing. The testimony presented by the surveyor was based on uncorroborated hearsay, which could not be relied upon for a finding of fact. Tag A0077: Regarding Staffing Standards-Administrators The surveyor noted that the administrator of record failed to provide adequate supervision over the facility by failing to notify the Agency of an adverse incident report for three of the patients sampled (i.e., Resident Nos. 3, 16, and 17). The facts of the incidents are set forth above. Regarding Resident No. 3, the evidence offered at hearing was sufficient to demonstrate that the deficiency found was appropriate. Regarding Resident No. 16, Petitioner was not the owner of the facility at the time of the resident’s elopement and, thus, Petitioner is not responsible for the incident that occurred prior to it assuming ownership of the facility. Regarding Resident No. 17, the evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. On November 6, 2015, the Agency conducted a follow-up survey wherein the surveyor cited an uncorrected deficiency regarding Tag A0077. No evidence was offered at hearing to refute the allegation that the deficiency was not corrected. Thus, the Class III uncorrected deficiency citation was appropriate. The evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. Tag A0078: Staffing Standards-Staff AHCA alleged that Dixie Lodge failed to ensure within 30 days that it had obtained and maintained in the personnel file of each direct health care provider, verification that the staff member was free from communicable disease. The surveyor testified that she reviewed the records for two staff members and discovered there was no documentation in the personnel file of the staff members to demonstrate compliance with the communicable disease-testing requirement. The evidence presented at hearing supports a violation for the allegations related to Tag A0078, which is an indirect risk to residents. Tag A0081: Training-Staff In-Service AHCA alleged that Dixie Lodge failed to ensure that staff members completed required in-service training programs, including training related to HIV and AIDS. An employee’s file contained a roster of staff members who completed a training course in HIV and AIDS. Although the roster was not dated and did not include a certificate of completion, there was evidence to demonstrate that the employee had completed the training. Based on the evidence presented at hearing, there was no clear and convincing evidence that Petitioner failed to provide HIV and AIDS training to staff. Tag A0082: Training-HIV/AIDS AHCA alleged that Dixie Lodge failed to ensure that a staff member had completed a required HIV/AIDS course within 30 days of employment. Specifically, the personnel file for Employee B included a training roster which reflected that she received the training. The surveyor noted that there was no date on the roster and no certificate of completion. The evidence of record demonstrates that Employee B completed the training. Regarding maintaining documentation, the roster was not offered into evidence to determine whether the requisite information was included on the roster. In addition, Petitioner had not assumed ownership of the facility during the timeframe that the training was required and, thus, there was not sufficient evidence presented at hearing to demonstrate that Petitioner is responsible for the alleged deficiency. Tag A0083: Training-First Aid and CPR AHCA alleged that Dixie Lodge failed to ensure that a staff member who had completed courses in First Aid and Cardiopulmonary Resuscitation (“CPR”) was in the facility at all times. The allegation was supported by the record. The failure to ensure at least one staff member on each shift is trained in First Aid and CPR presents an indirect or potential risk to patients. Tag A0090: Training-Do Not Resuscitate Orders (DNRs) AHCA alleged that Dixie Lodge failed to ensure that staff members timely completed a required training course in DNRs. The surveyor’s review of the personnel files of employees A, B, and C revealed that the files did not include sufficient documentation to demonstrate that the three employees completed required training in DNRs. Employees A and C had certificates indicating that they completed the training, but the certificates did not include the duration of the course. Employee B’s file did not include a certificate indicating she completed the training within 30 days, as required. Based on the evidence offered at the final hearing, there is sufficient clear and convincing evidence to support the citation for Tag 0090. Tag A0093: Food Service-Dietary Standards AHCA alleged that Dixie Lodge failed to maintain a three-day supply of food in case of an emergency. Specifically, the surveyor observed that three proteins had expired. The failure to ensure sufficient resident nutrition is an indirect risk to residents. There was clear and convincing evidence to prove the cited deficiency. Tag A0160: Records-Facility AHCA alleged that Dixie Lodge failed to maintain facility records for admission and discharge. Specifically, a review of the facility’s admission and discharge log incorrectly reflected that 80 residents resided in the facility. It was discovered that the discharge log had not been updated to reflect that five residents no longer resided in the facility. The evidence supports the citation for a deficiency for failure to properly maintain the discharge log. Tag A0161: Records-Staff AHCA alleged that Dixie Lodge failed to maintain personnel records with required documentation. Specifically, the Statement of Deficiencies alleges that the personnel files of four Dixie Lodge employees did not include documentation of required trainings. The surveyor reviewed personnel files for the employees. Employees A, B, and C did not include documentation of first aid or CPR training. Employee D’s file did not include updated Level 2 eligibility records. Failure to maintain proper and complete personnel files for employees does not pose an indirect risk to residents so as to constitute a class III violation. Tag A0167: Resident Contracts AHCA alleged that Dixie Lodge failed to provide 30 days’ notice prior to an increase in resident rates for services. The surveyor reviewed the records of two residents and discovered that the two residents received notice of the rate increase less than 30 days before they were implemented. However, the rate increase occurred prior to Dixie Lodge assuming ownership of the facility. Thus, Petitioner was not responsible for the rate increase notice and therefore, there was not sufficient evidence to support the deficiency. Impact on Residents Petitioner seeks to maintain operation of the facility so as not to prevent a negative impact on residents. Marifrances Gullo, RN-C, MSN, FNP-BC, is the owner of Advanced Practical Nursing Services, a behavioral health and addictions management practice. She was accepted as an expert in the field of psychiatric mental health nursing, and testified about the lack of availability of appropriate placements for Dixie Lodge residents should Dixie Lodge be closed. Nurse Gullo provides mental health services to facilities such as Dixie Lodge. She testified that the dislocation of Dixie Lodge residents would likely lead to extremely detrimental effects on many residents. Edward Kornuszko, PsyD, was accepted as an expert in the provision of psychiatric and mental health services. Dr. Kornuszko has more than five years of experience seeking residential placements for patients similarly situated to those at Dixie Lodge. He testified that the task of placing up to 77 chronically ill Dixie Lodge residents at once would be “nearly impossible.” If placements were found for residents who had been at Dixie Lodge for at least 5 to 10 years, he would expect to see “considerable decompensation” in these residents. Ultimate Findings of Fact AHCA demonstrated by clear and convincing evidence that the cited deficiencies were appropriate for Tag A0165, a Class II deficiency. There was also clear and convincing evidence to demonstrate that the cited deficiencies were appropriate for the following Class III deficiencies: Tag A0008, Tag A0026, Tag A0030, Tag A0052, Tag A0054, Tag A0077, Tag A0078, Tag A0083, Tag A0090, and Tag A0093. Dixie Lodge demonstrated a potential negative impact on residents should Dixie Lodge close its doors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Administration, enter a final order rescinding its Amended Notice of Intent to Deny Change of Ownership Application. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 10th day of May, 2018.
The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, 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 12th day of March, 2007.
The Issue Whether Respondent, West Florida Hospital (Respondent or the Hospital), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Rachel Lynn Bivins (Petitioner), in her employment with the Hospital based upon Petitioner's race.
Findings Of Fact Respondent is a hospital in Pensacola, Florida. Petitioner worked for the Hospital as a Housekeeper in the Environmental Services (EVS) Department from October 6, 2009, until her termination on January 3, 2011. Petitioner is black. The following typed statement appears in the "Particulars" section of the Charge of Discrimination form which Petitioner filed with the Commission after her termination: I worked for the Respondent as a Housekeeper since October 2009. From August 2010 through December 2011, Charles Randolph (White, Housekeeping Supervisor) denied my request for paid time off nine out of eleven times. On January 2011, I called out sick and on January 03, 2011 Randolph and Jeff Lantot [sic] (White, Director of Housekeeping) terminated my employment. I believe I was retaliated and discriminated against because of my race, Black. In November 2010, I requested paid time off before Charlene Lewis (White, Housekeeper), but Randolph denied my request and granted her one week off. On January 3, 2011, I attempted to provide a copy of my doctor's excuse to Randolph and Lantot [sic]; however, they said that they already had a copy. In 2010, Chrystal Simpkins (White, Housekeeper) and Maria Alacon (White, Housekeeper) called out at least seven times each and were not terminated. I believe I was discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended. On the same Charge of Discrimination form, out of the ten boxes provided to designate the bases for the alleged discrimination, Petitioner checked only the box indicating “RACE” as the basis for her claim. Petitioner was hired by the Hospital after her interview with the Hospital's EVS Department director, Jeff Lanctot. Mr. Lanctot, who is white, made the decision to hire Petitioner. The interview worksheet prepared by Mr. Lanctot contains positive written remarks regarding Petitioner's interview. Petitioner began working for the Hospital on October 6, 2009, on an as-needed (PRN) basis. She worked the evening shift. The "team lead" for Petitioner's shift was Michael Johnson. Michael Johnson is black. Petitioner’s direct supervisor was Charles Randolph, the operation manager for the EVS Department. Mr. Randolph was responsible for managing the evening crew of housekeepers at the Hospital, including Petitioner. Contrary to the statement in the Charge of Discrimination, Mr. Randolph is not white. He is black. The Hospital has a number of policies, including, but not limited to, a "Meal Period Policy" and an "Attendance and Tardiness Policy." The Hospital's Meal Period Policy requires that non- exempt employees, such as Petitioner, clock in and out for meal periods, and also requires that employees take at least 30 minutes for the meal period. This is to comply with federal wage and hour law, because meal periods of less than thirty minutes must be counted as working time and be paid. Under the Hospital's Attendance and Tardiness Policy, an employee's unscheduled absence is considered an “occurrence,” without regard to whether or not the employee had a good excuse for being absent. Each time an employee is tardy or fails to work as scheduled is also considered an “occurrence.” Six “occurrences” within a 12-month rolling calendar year, or three “occurrences” within a 30-calendar-day period, is considered “excessive.” The evidence indicated that the Hospital’s Meal Period Policy and its Attendance and Tardiness Policy are applied consistently, regardless of race. When hired, Petitioner went through an orientation process and was given an employee handbook which set forth the Hospital’s policies. As a result, Petitioner was aware of both the Hospital's Meal Period Policy and its Attendance and Tardiness Policy. Shortly after starting her job at the Hospital, Petitioner began to receive discipline for her violations of the Hospital's policies. On December 29, 2009, within three months of starting her job, Petitioner was given a written warning for violating the Hospital’s Meal Period Policy on December 6, 14, and 26, 2009. Petitioner admitted that she understood the Meal Period Policy, and also admitted that the written warning she received on December 29, 2009, was not racially motivated. Just a few weeks later, on February 1, 2010, Petitioner again violated the Hospital’s Meal Period Policy. Petitioner was given a “Final/Last Chance Agreement” disciplinary action for repeating the same policy violation for which she had received the written warning on December 29, 2010. Petitioner also violated the Hospital's Attendance and Tardiness Policy. On January 28, 2010, Mr. Randolph met with Petitioner to counsel her about her absences and tardiness. Despite the verbal counseling, Petitioner continued to be late and absent from scheduled workdays. On June 24, 2010, Mr. Randolph met with Petitioner and presented her with a written warning for violation of the Attendance and Tardiness Policy, because Petitioner was absent for eight workdays within a nine-month period, and had six tardies within the past 30 days. Recent absences noted on the written warning included absences on March 3, March 8, March 27 through April 5, April 26, and May 14, 2010.2/ At the final hearing, Petitioner offered the excuse of her absences noted in the June 24, 2010, written warning, by advising that she had severely injured her finger on March 27, 2010. The first two absences noted on the written warning, however, predated her injury, and the April 26 and May 14 absences occurred well after her injury. Also, Petitioner’s doctor’s note regarding her finger injury stated that she would be out of work for only two days, but she was out for more than a week. Moreover, under the Hospital's Attendance and Tardiness Policy, it did not matter that Petitioner's absences from March 27 through April 5 may have been excused because the policy is based on “unscheduled” absences, not “unexcused” absences. In addition, the Hospital only counted Petitioner's extended absence from March 27 through April 5, as only one "occurrence." The evidence indicates that Petitioner's absences noted on the June 24, 2010, written warning were accurate. At the time the written warning was issued, Mr. Randolph again verbally counseled Petitioner regarding her absences. On July 8, 2010, Mr. Randolph met with Petitioner and presented her with a “Final/Last Chance Agreement Documentation” disciplinary action because she had another unscheduled absence on July 1, 2010. At the time of her July 1, 2010, absence, Petitioner had already exceeded the number of unscheduled absences allowed by the Hospital’s Attendance and Tardiness Policy. Once again, Mr. Randolph counseled Petitioner regarding her absenteeism. Petitioner understood that a “Last Chance” disciplinary action meant that if there were any more occurrences, she would be terminated. Petitioner admitted that her absence on July 1 was unrelated to her finger injury. She also admitted that she had no evidence that the July 8 “Final/Last Chance” disciplinary action was motivated by her race. Mr. Randolph's counseling sessions with Petitioner on January 28, 2010, June 24, 2010, and July 8, 2010, were, in effect, a form of progressive discipline, conducted with the hope that Petitioner might improve her attendance and punctuality. Notwithstanding the prior Written Warning on June 24, and the “Last Chance” disciplinary action on July 8, as well as the fact that Petitioner had already exceeded the allowable number of unscheduled absences, Petitioner continued to violate the Hospital’s Attendance and Tardiness Policy. Petitioner had two more unscheduled absences, one on November 12, 2010, and another on January 1, 2011. Petitioner admitted that she had no evidence to show she worked on November 12, 2010, and acknowledged that she did not work on January 1, 2011. Although Petitioner claimed that the January 1, 2011, absence was for a medical reason, she had not requested or obtained advance approval from EVS Management to be out of work on that date, thus, under the Hospital's policy, her absence constituted another “unscheduled” absence. Petitioner was aware that if she had six occurrences of unscheduled absences within a rolling 12-month period, she could be terminated. Because Petitioner had a total of eight occurrences of unscheduled absences during the previous rolling 12-month period, and because she had received prior disciplinary actions for violation of the Hospital's Attendance and Tardiness Policy, Mr. Lanctot decided to terminate Petitioner’s employment. Before actually terminating Petitioner, Mr. Lanctot had his clerical staff confirm that Petitioner had in fact been scheduled to work, and failed to work the number of times reflected on the prior disciplinary actions. His staff checked and confirmed the number of “occurrences.” Mr. Lanctot also conferred with Karen Oliver, the Vice President of Human Resources for the Hospital. Ms. Oliver reviewed all of the documentation from a Human Resources perspective and concluded the termination was justified. After conferring with Ms. Oliver, Mr. Lanctot met with Petitioner on January 3, 2011, to advise her of his decision to terminate her employment. During this termination conference, Mr. Lanctot explained to Petitioner that he was terminating her employment for violation of the Attendance and Tardiness Policy. Petitioner was terminated that same day, January 3, 2012. At the time of her termination, she had worked for the Hospital for one year and three months. EVS Department Director Jeff Lanctot made the decision to terminate Petitioner’ employment. As he had explained to Petitioner, the basis for her termination was her violation of the Hospital’s Attendance and Tardiness Policy. At the final hearing, Petitioner acknowledged that, during her termination conference, Mr. Lanctot advised her that the reason he decided to terminate her employment was due to her excessive unscheduled absences in violation of the Hospital's policy. At no time prior to or during the termination conference did Petitioner make any complaint of race discrimination. At the final hearing, while suggesting that her promotion to full-time employment was inconsistent with the Hospital's assertions that she was excessively absent, Petitioner admitted that she had no evidence that her disciplinary actions or termination were based on racial prejudice. Petitioner also failed to demonstrate that a non- minority employee, with a substantially similar employment situation and disciplinary record as her own, was treated more favorably. Although Petitioner claimed that a non-minority employee named Crystal Simpkins received preferential treatment, Petitioner did not introduce admissible, non-hearsay, evidence to show the dates or time periods of Ms. Simpkins’ alleged unscheduled absences and tardiness. Petitioner admitted that she had never looked at Ms. Simpkins’ employment file. Petitioner also admitted that Ms. Simpkins worked a different shift than Petitioner and that Ms. Simpkins had a different supervisor than Petitioner. According to team lead Daisy Machuca, who was called as a witness by Petitioner, Petitioner was “missing a lot” of workdays and the Hospital applied its Attendance and Tardiness policy consistently to all its employees. Ms. Machuca's testimony in that regard is credited. There is no evidence that Mr. Randolph, who is black, or Mr. Lanctot, who hired Petitioner in the first place, or anyone else at the Hospital, ever said anything to Petitioner that was racially discriminatory. Petitioner failed to introduce any evidence to indicate that, following her termination, she had been replaced by a non-minority or someone who was not black. There was no credible evidence adduced at the final hearing showing that the Hospital has not applied its policies consistently to all of its employees, regardless of race. And, the Petitioner failed to show that the Hospital terminated her employment because of her race. Rather, the evidence shows that the Hospital terminated Petitioner based on her violation of the Hospital’s Attendance and Tardiness Policy. In addition to her claim that she was terminated because of her race, Petitioner claims that the Hospital discriminated against her with regard to its "Paid Time Off" policy. The Hospital's Paid Time Off (PTO) policy provides guidelines for requesting advance approval for all scheduled absences. The primary factors used by the Hospital in deciding whether to approve PTO requests are the operational needs of the department, scheduling needs, the order in which the requests are received, employee PTO usage, and the length of service if two or more requests are received at the same time. In order to request PTO in the Environmental Services Department, where Petitioner worked, an employee on the evening shift was required to physically hand the PTO Request form to Mr. Randolph. If Mr. Randolph denied the request, the employee could then bring the request to Mr. Lanctot and ask that he review Mr. Randolph’s denial of the request. The Hospital maintains PTO request forms as part of its personnel records for its employees. The Hospital’s records show that Petitioner submitted four requests for paid time off, and she was approved for three of her four requests. According to Hospital records, Petitioner submitted her first request on May 18, 2010, to be off on June 11 and 12. That PTO request was approved by Mr. Randolph. Petitioner submitted a second request on August 19, 2010, to be off August 27 through August 29. Mr. Randolph initially disapproved this PTO request. However, Petitioner spoke to Mr. Lanctot about it, and Mr. Lanctot decided to approve the request. Petitioner admitted this PTO request was ultimately approved. Petitioner submitted a third PTO request, which was undated, to be off from December 4 through December 8, 2010. Mr. Randolph denied this PTO request because two other housekeepers had already requested and been granted time off during that time. Mr. Randolph explained his reasoning to Petitioner at the time of his denial of her request. Petitioner suggests that denial of her third, undated PTO request was improper because another employee received the time off but her PTO request was denied. While suggesting that the other employee received preferential treatment, Petitioner did not personally review the PTO Requests in the Hospital’s files, and thus had not seen the actual PTO request submitted by the other employee. Review of the actual PTO file shows that the other employee's PTO request was not even for the same time frame as Petitioner's PTO request. Petitioner otherwise failed to show that her third PTO request was denied because of her race. Petitioner submitted her fourth PTO request on November 29, 2010, requesting to be off December 12 and 13. Mr. Lanctot approved this PTO Request. In fact, Mr. Lanctot could not recall ever personally denying any of Petitioner’s PTO requests. Both Mr. Randolph and Mr. Lanctot credibly testified that they did not destroy any PTO requests that were submitted to them by Petitioner. Petitioner also claims that there were other PTO requests which she submitted that were denied. Those alleged requests, however, were not in the Hospital’s records. In support of her claims, Petitioner presented copies of PTO requests with her handwriting only, which were not from the Hospital’s records. Mr. Randolph denied that Petitioner had given any of these other requests to him, as required. There are several inconsistencies on the copies of PTO requests that Petitioner alleges that she presented for approval but are not reflected in the Hospital's files. On some of Petitioner’s copies, there were requests for days off that predated the date of the purported PTO request. Another one of the copies included a request for leave on the same date as one of the four official PTO Request forms from Petitioner in the Hospital's files, but the signature and other writing on Petitioner's copy was starkly different than the Hospital’s official copy. In addition, the only writing appearing on Petitioner’s copies is Petitioner’s own handwriting, and her copies contain no writing by any other Hospital employee. Further, the PTO request forms are required to be approved or denied in writing by a supervisor, before they become effective. Petitioner presented no records indicating the requests in her copies were ever approved or not. Considering the evidence, it is found that the only PTO requests submitted by Petitioner are the four PTO requests introduced by the Hospital in Exhibit R10. There is no evidence that any of Petitioner's PTO requests were denied because of Petitioner's race. The evidence presented by Petitioner was otherwise insufficient to show that the Hospital failed to apply its PTO policy, or any other policy, consistently to all of its employees, regardless of race. The Hospital has an Equal Employment Opportunity (EEO) Policy that prohibits all unlawful forms of discrimination, harassment, and retaliation. The EEO policy provides four alternative ways to make a discrimination complaint: (i) report complaint to the immediate supervisor, (ii) report complaint to a member of management, (iii) report complaint to the Human Resources Department, or (iv) call a confidential 1-800 Ethics Line number. Employees are notified of the Hospital’s EEO policy during orientation and during annual Code of Conduct trainings. The Hospital’s EEO Policy is also set forth in the Employee Handbook and posted on posters throughout the Hospital. Petitioner was familiar with the Hospital’s EEO Policy. However, she never utilized the Hospital’s policy for making a complaint of race discrimination to anyone at the Hospital at any time while she was employed by the Hospital. She also never called the Hospital’s confidential 1-800 Ethics Hotline number displayed in the Employee Handbook and on posters throughout the Hospital. In fact, she never made any written complaint in any form to anyone about racial discrimination during her employment. And, at no time during her employment did Petitioner ever complain of race discrimination to Mr. Lanctot, Mr. Randolph, or the Hospital's Director of Human Resources, Karen Oliver.3/ The first time that Petitioner made any written complaint of race discrimination was after her termination, when she filed her Charge of Discrimination with the Commission. Inasmuch as Petitioner never made any complaint of race discrimination prior to her termination of employment, it necessarily follows that Mr. Lanctot, who made the decision to terminate Petitioner’s employment, had no knowledge of any such complaint at the time he made the decision to terminate her employment. In sum, Petitioner failed to show that the Hospital discriminated against Petitioner by treating her differently or terminating her because of her race, and she also failed to show that the Hospital retaliated against her based on her filing a complaint of race discrimination, or because she engaged in any other protected activity.
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 Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 18th day of September, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 18th day of September, 2012.
