The Issue The issue is whether Petitioner, Madeline Smith, d/b/a Madeline L. Smith Boarding Home, (Smith) is entitled to relicensure as an Adult Congregate Living Facility (ACLF) or should be denied relicensure based upon intentional or negligent acts which seriously affect the health, safety or welfare of a resident or residents of the ACLF, as more particularly stated in the denial letter dated September 26, 1985. Petitioner presented the testimony of Madeline Smith, E'Lona Hogan, Carlos Martinez, Jo Ann Brooks, John Wade, Stephen Noulin, John Noulin and Dorothy Kaplan. Petitioner's Exhibits 1-16, 18-20, and 24 were admitted in evidence. Respondent, the Department of Health and Rehabilitative Services (DHRS), presented the testimony of James Valinoti, Phillip Drabick, Paul Grassi and Elizabeth Baller, together with Respondent's Exhibits 1, 2 and 4 which were admitted in evidence. The transcript of these proceedings was filed on June 19, 1986. The parties were to file proposed orders within 30 days of the filing of the transcript. On July 10, 1986, Petitioner filed a Motion for Extension of Time, requesting until after August 4, 1986, to file a proposed order. The motion was granted by order dated July 15, 1986, wherein the parties were granted to and including August 15, 1986, to file their proposed orders. Respondent filed its proposed recommended order on August 18, 1986. To date Petitioner has failed to file a proposed order. Accordingly, this Recommended Order is entered without reference to or consideration of a proposed order by Petitioner. All proposed findings of fact and conclusions of law filed by Respondent have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order DENYING renewal of the ACLF license of the Madeline L. Smith Boarding Home. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986. COPIES FURNISHED: James A. Pearson, Esquire 2435 Hollywood Boulevard Hollywood, Florida 33020 Dennis Berger, Esquire Office of Licensure and Certification 5190 N. W. 167 Street Miami, Florida 33014 William Page, Jr., Esquire Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Respondent's Proposed Findings of Fact. Each and every proposed finding of fact of Respondent is adopted in substance in Findings of Fact 1, 2, 3, and 4.
Findings Of Fact Respondent is a non-instructional employee of Petitioner. Respondent is employed by Petitioner in its food services division. Respondent sustained an injury to her lower back on or about April 21, 1994, within the scope of her employment with Petitioner. Respondent reached for a box in an overhead location and fell backward onto her buttocks. She complained of discomfort in her lower back. Dr. Thomas J. Brodrick treated Respondent for her injury. The course of treatment included a magnetic resonance image ("MRI") and two electromyographic studies ("EMGs"). On January 26, 1995, Dr. Brodrick discharged Respondent from his care. Dr. Brodrick determined that Respondent has no physical impairment and no permanent disability. After January 26, 1995, Respondent failed to return to work. By letter dated February 3, 1995, Petitioner directed Respondent to report to work on February 8, 1995. In the same letter, Petitioner notified Respondent that she would be terminated from her employment if she did not report to work. On March 28, 1995, Respondent was evaluated by Dr. Urbach. Dr. Urbach examined Respondent, reviewed the records of Dr. Brodrick, and reviewed the MRI and EMG results. Respondent is physically capable of returning to work. Respondent has degenerative disk disease at levels L-1-2 and L-2- 3. Respondent's complaints are caused by functional overlay, or secondary gain motives, rather than by a physical impairment or permanent disability. On March 28, 1995, the Florida Department of Labor and Employment Security, Division of Workers' Compensation, issued a Notice of Claimant Disability Status. The notice determined that Respondent is able to return to work without restrictions. Since January 26, 1995, Respondent has been physically able to return to work without restrictions. Respondent failed to return to work after January 26, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order terminating Respondent from her employment. RECOMMENDED this 6th day of October, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1995. COPIES FURNISHED: Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771 Ned N. Julian, Esquire Director of Legal Services Seminole County Public Schools Post Office Box 1358 Sanford, Florida 32772-1538 Teresa Rynczak, pro se 1006 Aviles Court Oviedo, Florida 32765
