The Issue Whether Respondent committed the violations in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. Pecan Grove is an assisted living facility which is owned by North Florida Living Facilities. Pecan Grove has a licensed capacity of eight beds and is located in a home in Pensacola, Florida. Case No. 01-1209 Robert DuBose is the Director of Environmental Health for the Escambia County Health Department. His office is responsible for inspection of facilities, including assisted living facilities, regarding environmental health matters. His agency works in cooperation with AHCA in that AHCA handles licensure and related inspections and his agency handles the environmental health portion of the inspections. His agency is primarily interested in facility sanitation and issues that would be related to the health of the residents. In September of 2000, Mr. DuBose received a call from an AHCA nurse informing him of certain environmental health conditions at Pecan Grove. Also in September of 2000, AHCA responded by letter to a resident of Pecan Grove regarding a complaint made by the resident regarding the facility. The letter to the resident stated that an unannounced visit to the facility would take place. Mr. DuBose, the Deputy Director of Environmental Health, and a facility inspector from his agency went to Pecan Grove and conducted an inspection of the facility. During the inspection, Mr. DuBose and his colleagues found numerous environmental health problems: I was appalled at the condition of this facility. And as I indicated in my written statement, I couldn't believe that something like this had a license in the State of Florida. I just -- I have never seen anything like this that had any type of license from the State in all the years of being a health inspector. I've seen things like this in private residences where we had dilapidated homes, indigent folks living there, people that were mentally ill, living conditions like this, but I just can't -- I still don't understand how or why this place was licensed. And I'm sure, you know, AHCA may have some feelings in the same -- it's not that someone -- I'm not sure what happened but it's not any facility we want to have licensed, I guess is what I was trying to say. It was just -- there was roaches in the refrigerator. There was roaches in the building. There were no linens on the beds. People were sleeping on mattresses without covers, pillows without covers. There were evidence of rats in the heater closet. There was no hot water in one of the bathrooms. There was some improper storage of garbage. When we were outside, the mosquitos [sic] were just eating us up. I mean, we had bites all over us just waking [sic] around outside. And we found the storage containers with stagnant water in them sitting around in the yard. Thee [there] was sewage overflowing and they had a septic tank that a laundry or the laundry wastewater was overflowing, some type of sewage was overflowing in the middle of the back of the yard. There were rat burrows up under the house. It was -- it was just the carpets were filthy. You couldn't even tell what color they were. It's just housing that you would -- that I've -- I haven't seen anything like that since, I suppose, the times that we did the I-110 road control project when we put I-110 through Pensacola and the people -- there was some low income people in that area and the people moved out of the houses and we had to go in there or our inspectors had to go in to kill the rats and fleas before we tore the houses down and it was similar to that type of condition. And like I say, I've seen some elderly people that were mentally ill living in that type of condition, but never, never seen any kind of a facility like that. No question that this was a health hazard. The people needed to be moved. These environmental health problems described by Mr. DuBose constitute gross environmental health hazards. Rats carry fleas that can cause disease when they bite people. Additionally, rats urinate as they travel and carry a disease called leptospirosis in their urine and other diseases. Upon inspection, Mr. DuBose found mosquito larvae in several containers in all different stages of development indicating the containers had been standing for some time. Mosquitoes carry several diseases including dengue fever and West Nile virus. The sewage overflow in the backyard also constituted a health hazard even though it was from wash water, as that is still highly contaminated wastewater. The inside of the facility also contained many health hazards including inadequate air conditioning and a leak in the sink so severe that the bottom of the cabinet under the sink was saturated from water before a bucket had been placed there to catch the dripping water. The inside of the refrigerator was 70 degrees which was significantly above the temperature adequate to safely store food. Roaches were found inside the refrigerator. Roaches are a health hazard because they track contaminants onto food. A burner on the stove was not working causing concern that an electrical fire could result. The carpets and floors were filthy. There were no sheets on the beds and the mattresses and pillows were filthy. There were rat droppings and pecan shells in the water heater closet which was adjacent to the bedrooms and hallway. The bathrooms were in poor condition in that there was no hot water in the hand sink in one of the bathrooms and no faucet on another. Mr. DuBose and his colleagues called Adult Protective Services requesting they send an inspector there as the inspection team felt the residents needed to be removed immediately. The owner agreed to move the residents immediately and the residents were moved to another facility owned by Respondent, Willow Grove. Margot Robinson, administrator of Pecan Grove and wife of the owner of Pecan Grove, attempted to explain some of the health hazards found by Mr. DuBose. She and her husband had started to remodel the facility. They had removed some carpet and started painting one of the bedrooms. She also explained that on the day of Mr. DuBose's inspection, she had ordered a staff person to remove the bed linens for washing and to bleach the mattresses. Further, she explained that a house across the street from Pecan Grove had burned down several months prior to the inspection and that rats were coming to Pecan Grove from a pile of wood left from the burned house. She also accused a former resident of causing damage to the facility. AHCA placed a moratorium on admissions to Pecan Grove on September 26, 2000. By letter dated October 24, 2000, AHCA lifted the moratorium on admissions indicating that Tag A1006, which with Respondent had been cited in the Administrative Complaint, had been corrected. Case No. 01-2107 As the result of a complaint received by AHCA, Sandra Corcoran and Norma Endress, registered nurse specialists employed by AHCA, conducted a survey inspection of Pecan Grove in April 2001. The complaint was in regard to two issues: threat of harm to a resident and that a resident was not getting the type of food he could eat. During the survey inspection, Resident #1 informed the surveyors that he had been threatened by Resident #3 that if Resident #1 changed the thermostat, that Resident #3 would hit him. Resident #3 was present at the beginning of the survey inspection. He was a tall man whose demeanor was threatening to a point that even the AHCA nurses were intimidated by him. Resident #3 first lived at Willow Grove, but was moved to Pecan Grove. He had a history of psychological problems and would at times check himself into a local psychiatric care facility. At the time of the survey visit, Resident #3 had been given his discharge notice from Pecan Grove. The AHCA surveyors instructed the staff person to call the police if Resident #3 made threats to the other residents. Resident #1 was thin and pale and complained to the surveyors that he was not given appropriate food to eat. That is, Resident #1's teeth were in very poor condition and he requested soft foods such as Vienna sausage, potted meat and oatmeal. During the survey inspection, Ms. Corcoran did not observe these types of food to be available for Resident #1. However, Mrs. Robinson explained that Resident #1 had been given Promote, a nutritional drink, to supplement his diet. Ms. Corcoran asked a staff person to look at Resident #1's "1823" which is the document that contains any medical orders for the resident as well as diet requirements. However, none of the records for the resident were at the facility. All of the residents' records had been taken to Willow Grove by David Davis, area manager for Pecan Grove and Willow Grove. Mr. Davis' office was at Willow Grove and he had taken the records to his office to update them. Pecan Grove failed to have available the residents' medical records at the facility. AHCA placed a moratorium on admissions to Pecan Grove which was lifted on May 11, 2001, as the result of corrected deficiencies including the three deficiencies with which Respondent was charged in the Administrative Complaint, i.e., Tag A718, Tag A802, and Tag A300.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revoking Respondent's license for Pecan Grove Living Facility. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. 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 15th day of November, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Richard P. Warfield, Esquire 201 East Government Street Pensacola, Florida 32501 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes. On January 8, 1988, Jerome Allison, a truck driver employed by Respondent, picked up 47 pigeon plum trees from Petitioner's yard in Miami. Petitioner sold these trees to Respondent for the price of $90 per tree, or $4230, for a total of $4441.50 including tax. Mr. Allison delivered a check to Petitioner in the amount of $1057.50, leaving a balance of $3384. Respondent had not specified to Petitioner that the trees be of any particular grade. Petitioner did not sell the trees by reference to grade and guaranteed only that the trees were true to their name and were in good healthy condition. Petitioner brought the trees to the trailer for loading. Two of Petitioner's employees drove a tractor which carried the trees two at a time. In the course of loading, Petitioner's employees allowed the trees to rub together, damaging the bark of many of the trees. Mr. Allison tried unsuccessfully to alert one of Petitioner's managers to the problem, but was unable to find anyone in the office. Mr. Allison's warning to one of the tractor operators was ignored. Mr. Allison's illiteracy prevented him from noting this damage on the sales order that he signed acknowledging receipt of the trees. Upon receipt of the trees at the Key West jobsite, Respondent's president, Alberto Ribas, who was director of the project for which the trees had been purchased, noticed the damage, but decided to plant the trees anyway. Respondent pruned the trees in order to repair as much of the damage as possible. Following the delivery of the trees, the first contact between Petitioner and Respondent took place on February 15, 1988, when Keith Weyrich, general manager of Petitioner, called Mr. Ribas and asked when Petitioner was going to be paid. Mr. Ribas informed Mr. Weyrich that there had been a problem with the trees. Shortly prior to this conversation, a representative of the Florida Department of Transportation, which was Respondent's customer on the subject project, informed Mr. Ribas that they were rejecting all of the pigeon plum trees due to their poor quality. In early May, 1988, the representative of the Florida Department of Transportation announced its final decision. It rejected 23 trees and accepted seven trees. The remaining 17 trees were reclassified from Florida No. 1, which was evidently specified in the contract between Respondent and the Florida Department of Transportation, to Florida No. 2, which is a lower quality. Of the 47 trees delivered to Respondent, 24 were good healthy trees and 23 were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $1210.50. DONE and RECOMMENDED this 5th day of October, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-3 and 12. Adopted. 4. Adopted in substance, although not all trees were significantly damaged. 5 and 8-9. Adopted in substance. 6. Rejected as repetitious. 7 and 11. Rejected as against the greater weight of the evidence. Paragraph 7 also rejected as irrelevant to the extent that Respondent gave Petitioner the chance to remove the trees after they were planted. 10. Rejected as irrelevant. Treatment Accorded Petitioner's Proposed Findings and 12. Rejected as irrelevant. and 7. Adopted. 3-5. Adopted in substance. 6. Rejected as legal conclusion and against the greater weight of the evidence. 8. Rejected as repetitious. 9-10. Rejected as legal conclusion. 11. Rejected as against the greater weight of the evidence. COPIES FURNISHED: Keith Stuart Weyrich General Manager Quail Roost Nursery, Inc. 15100 Quail Roost Drive Miami, Florida 33187 Emilia Diaz-Fox, Esquire Courthouse Tower 44 West Flagler Street Suite 350 Miami, Florida 33130 (Post-Hearing for Petitioner) Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse 155 South Miami Avenue Miami, Florida 33130 United States Fidelity & Guaranty Company Post Office Box 14143 Tampa, Florida 33623 Clinton H. Coulter, Jr., Esquire Department of Agriculture & Consumer Services Mayo Building Ben Pridgeon Bureau of License & Bond Mayo Building Tallahassee, Florida 32399 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
The Issue The issue is whether Respondent, in the performance of his duties as a city employee, used city property negligently or without authorization and, if so, what penalty should be imposed.
Findings Of Fact Respondent is employed by Petitioner as an Equipment Operator II in the Parks and Recreation Department. Respondent has worked for Petitioner for several years. Respondent’s supervisor, Rick Schill, has been a supervisor for 13 years. He has supervised Respondent for three years. In late March 1997, Mr. Schill directed Respondent to work in Eco Park. Eco Park is a natural area owned by Petitioner that was overgrown with vegetation, especially Brazilian Pepper trees. Petitioner had received a grant of over $400,000 that required, among other things, that it remove all exotic vegetation, such as Brazilian Pepper, from Eco Park by December 1997. Around the end of February 1997, Mr. Schill had asked Bob Taylor, a supervisor in the Streets Department, to remove the Brazilian Peppers, but the Streets Department did not commence the work when agreed. Mr. Schill was anxious that the work proceed without delay because it partly depended on chemical treatment, which could not be undertaken once the rainy season started. Removing mature Brazilian Pepper trees is difficult, particularly when the trees have grown in dense tangles, as they had done at Eco Park. Several years ago, Petitioner removed Brazilian Pepper trees from the Northgate area. A current city employee who worked on the Northgate project testified that the Brazilian Pepper is like barbed wire and can easily slash brake and hydraulic lines and tires. Attacking rooted masses of five or six gnarled trunks of 8-10 inches each in diameter at the base, this employee, using similar equipment to what Respondent used in this case, also smashed headlights, twice popped-off windshields, and frequently got the equipment stuck. He also explained that the root rakes that Petitioner has since purchased do not help tear out the trees easier; they only eliminate the dirt. A threshold problem in this case is the unsuitability of Petitioner's equipment to remove Brazilian Pepper in difficult terrain, especially when the vegetation has been allowed to mature to the extent that the vegetation had at Eco Park. A bulldozer is the most suitable equipment for tree removal under these circumstances, but Petitioner does not own a bulldozer. Petitioner has previously rented a bulldozer for such jobs, as at Mariner High School, but refused Respondent's request that it rent one for the Eco Park job. Respondent began the Eco Park job with a 580 backhoe that he borrowed from the Streets Department. After a couple of days, possibly devoted to preliminary trash removal, Respondent returned the 580 backhoe and asked Bob Taylor, a supervisor in the Streets Department, if he could borrow the department’s larger Case W-20 front-end loader. Respondent believes that Mr. Taylor mistakenly authorized Respondent to take the W-20 belonging to the Stormwater Department. Mr. Taylor testified that he told Respondent that the W-20 was unavailable because it was clearing Brazilian Pepper trees elsewhere. The Streets and Stormwater departments stored their heavy-duty equipment in the same yard. The Stormwater Department had Petitioner's only other W-20 front-end loader, which was in the yard when Respondent was finished with the 580 backhoe. Petitioner has not proved that Respondent took the Stormwater Department’s W-20 without anyone’s permission. Two facts militate against a finding of unauthorized removal of the W-20 by Respondent. First, nothing in the record suggests why Respondent would steal city equipment to do city work. Second, after failing to get a bulldozer, Respondent was sufficiently wary of being held responsible for damage to city equipment that he insisted on a witness at Eco Park, so it is unlikely that, given such caution at the possibility of equipment damage, he would take the W-20 without permission. In any event, Respondent took the Stormwater Department’s W-20 front-end loader to Eco Park. On March 27, 1997, while Respondent was operating the W-20 removing Brazilian Peppers, a branch, trunk, or stump pierced the tire, and Respondent got the machine stuck in a marshy area of the park. A few days later, after the flat had been repaired, Respondent severed a hydraulic line, broke the windshield, and possibly broke a headlight. Respondent next borrowed a Case 621 loader from the Stormwater Department. Respondent got the Case 621 stuck in the muck and borrowed a Trojan to try to free the Case 621. In doing so, Respondent damaged the engine cover on the Case 621 and damaged its hydraulic lines. Petitioner has failed to prove that Respondent operated any city equipment negligently, without authorization, or in violation of uniformly enforced procedures concerning use or authorization. Whenever the equipment was damaged, Respondent promptly notified Mr. Schill or Fleet Department personnel, who were responsible for equipment repairs and maintenance. At all times, Respondent used the equipment in the scope and course of his employment--specifically, his assignment to remove Brazilian Peppers from Eco Park. The damage was most directly caused by the failure of Petitioner to rent the bulldozer requested by Respondent.
Findings Of Fact The Respondent was a public school teacher employed by the Washington County School Board under a continuing contract of employment at the time of the events referred to in the Petition for Dismissal. He remained on continuing contract status as a teacher at the Roulhac Middle School until his suspension on November 7, 1983. On the morning of April 5, 1982, William Poole, Chief of Police for the City of Bonifay, responded to a confidential informant's report of suspected marijuana plants growing on property located at 312 Caldwell Avenue, Bonifay, Florida. Chief Poole went to that location accompanied by Assistant Chief of Police Ike Gardner. When he arrived at the scene in the rear of the house located at that address and across the back fence marking the rear boundary of the property, the Chief looked over or through the fence on the rear boundary of the property and observed what he believed to be ten to twelve marijuana plants growing in a garden along the back fence. The house was owned at the time by the Respondent's Mother, Lavada Forehand, who was living in the house with the Respondent at the time the suspected marijuana plants were discovered. Chief Poole took photographs of the property, the garden and the suspected marijuana plants at that time, which were admitted into evidence as Petitioner's Exhibit 1. An investigation was initiated and in the early morning hours of April 7, 1982, Chief Poole again observed the suspected marijuana plants in the Respondent's garden. Later that day the Chief received a call from a confidential informant to the effect that the Respondent was, at that time, in the garden. Chief Poole proceeded to a residence on adjacent property and viewed the garden, and at approximately 4:00 p.m. that afternoon observed the Respondent watering plants in the garden for approximately 20 minutes. The officers were equipped with a camera with a telephoto lens at the time, and took photographs of the Respondent watering his garden, which were offered and admitted into evidence as Petitioner's Exhibit 2. Based upon his personal observations and the photographs which he obtained, Chief Poole proceeded to the State Attorney's office where he was assisted in the preparation of a search warrant for the subject property, which was duly issued by the Court. That evening of April 7, 1982, the two officers proceeded to the Caldwell Avenue residence owned by Respondent's mother, where the Respondent resided, and served the search warrant. When they arrived the Respondent was present with his mother and another lady with several children. The officers served the search warrant and thereupon went to the garden area which they had earlier observed and found it "standing in water." The suspected marijuana plants which they had previously observed were no longer present, and no traces of marijuana could be found in the house or on the grounds. At the time the premises were searched, and at the time the officers observed the Respondent watering the garden, the Respondent resided at the premises in question with his mother and by his own admission had resided there for approximately the last three weeks prior to April 7, 1982. In addition to the Respondent and his mother residing at the premises, various friends and relatives and other persons had access to the premises and visited there from time to time. Other persons have lived there or been invited there from time to time and his mother had problems during 1982 with trespassers on her property and has complained to the Bonifay Police Department regarding trespassers. Respondent acknowledges that he maintained the garden on the site growing tomatoes, bell pepper and other large and small vegetables including "a couple of hills of squash" and broccoli. On the day in question he was watering tomato plants according to his testimony. The Respondent has a nephew who sometimes resides with Respondent's mother and so do other young persons. The Respondent maintained he did not plant the marijuana plants and does not know who did plant them. In fact it has not been established that the Respondent planted the marijuana plants. The Respondent knows the neighbors who own the property and live adjoining his mother with the exception of neighbors who lived in the house from which the officers conducted the surveillance and from which the photographs were taken, who moved in and out quickly so that the Respondent did not become acquainted with them. The Respondent is active in his teacher's union and has incurred an increasingly hostile relationship with Superintendent Adams since 1981 when the Superintendent ordered interscholastic sports terminated at Roulhac Middle School where the Respondent coached as well as taught Civics. The Respondent conducted a campaign to reinstate athletics at the school at the behest of many of the parents of students at the school, and in the course of this campaign engendered a relationship of animosity with Superintendent Adams. The Respondent maintains that he cannot identify the plants depicted in the photos considered by the officers to be marijuana plants. He once smoked marijuana 14 years ago when in college but has not smoked it since and once taught a drug abuse course for the Northwest Florida Drug Abuse Council. He agrees with Superintendent Adams' view that a teacher using drugs should be dismissed but he denies doing so since becoming a teacher. Although it was established that the Respondent was likely capable of identifying marijuana by sight in view of his prior experience with the drug education course, it was not established that in fact he knew the marijuana was in the garden on his mother's property, nor was it established that he had sole access to or control of his mother's property, including the house and surrounding grounds, and particularly, the garden in question. Chief Poole had no doubt that the plants he observed, and which were photographed and are depicted in Petitioner's Exhibit 1, were marijuana plants. The Chief could not establish however, that the plants that Forehand was observed and photographed watering were actually marijuana plants as opposed to tomatoes, bell peppers, squash or some other vegetable which were present in the garden. Both Chief Poole and Agent William Fisher of the Florida Department of Law Enforcement are trained to make visual identification of marijuana. Chief Poole, however, is not trained to make a chemical analysis in identification of controlled substances, including marijuana, nor is he trained to give a positive identification of marijuana based upon other forms of testing, aside from visual identification. Agent William Fisher is very familiar with marijuana and testified that the plants depicted in Exhibit 1 "appeared" to be marijuana. Agent Fisher was shown the photographs of the plants the Respondent was watering but could not identify that the plants he was watering were actually marijuana. Agent Fisher testified that there was a "strong probability" that the plants depicted in Petitioner's Exhibit 1 were marijuana plants but added that he was not trained to make a positive identification of marijuana plants and did not consider himself qualified to do so. He was unable to perform any sort of "presumptive test" as for instance, by smell or taste or touch, because he was only shown a photograph of the plants in question. Chief Poole has had 11 years of law enforcement experience and attended numerous classes concerning drug enforcement and drug identification, and has served as a drug-handler for a "drug dog." In his years of law enforcement experience he has sent numerous samples of suspected marijuana to the FDLE Crime Lab in Tallahassee and Pensacola, and none of his samples have ever been confirmed as anything other than marijuana. Chief Poole, however, did not succeed in obtaining the plants he observed growing in the subject garden upon his search of the premises, however, because they had "disappeared." Thus, no chemical or other positive identification test has been performed on anymarijuana seized on the premises in question, because none was seized at all. The officers performing the search did not know whether other people might have access to the house and garden in question, and Chief Poole admitted he did not know who else might have access to the garden. The Respondent called five "character witnesses" (four teachers and one parent) each of whom had had acquaintance with the Respondent for a substantial period of time and had knowledge of his reputation in the community for truth and veracity. The Respondent has a reputation for being truthful. The Respondent has never before been subjected to disciplinary action during his career as a teacher.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Administrative Complaint filed by the Petitioner herein should be DISMISSED and the Respondent should be reinstated with full back pay from the date he was suspended without pay. DONE and ENTERED this 18th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Charles Adams, Superintendent of Schools Washington County School Board 206 North Third Street Chipley, Florida 32428
The Issue Did Respondent, Kona Properties, LLC, d/b/a Greenleaf Assisted Living, LLC (Greenleaf), violate section 429.26(7), Florida Statutes (2019),1 and Florida Administrative Code Rule 59A-36.007(1) and, if so, what penalty should be imposed? (Count I) Did Greenleaf violate section 429.176 and 429.52(4) and (5) and rule 59A-36.010? If it did, what penalty should be imposed? (Count II) Did Greenleaf violate rule 59A-36.010(2) and, if so, what penalty should be imposed? (Count III) Should the Agency impose a survey fee upon Greenleaf pursuant to section 429.19(7)? If so, what amount of fee should be imposed? (Count IV) Did Greenleaf commit one or more Class I violations justifying revocation of its license under section 429.14(1)(e)1.? (Count V) Did Greenleaf violate the background screening requirements of sections 408.809, 429.174, and 435.06(2)(a) through (d)? If so, what penalty should be imposed? (Count VI) Did Greenleaf violate rule 59A-35.110 by not making timely adverse incident reports, and, if so, what penalty should be imposed? (Count VII)
Findings Of Fact The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of the statutes governing ALFs, codified in chapters 429, part I, and 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code Chapters 59A-35 and 59A-36. Greenleaf was, at all material times, an ALF in Kissimmee, Florida, operating under the Agency's licensing authority. Greenleaf's license authorized it to operate a 75-bed facility. Greenleaf also held a limited mental health license. This authorized it to care for residents with mental health issues, residents that many facilities will not serve. Greenleaf was required to comply with all applicable statutes and rules. There is no evidence that the Agency has ever imposed sanctions on Greenleaf or determined that it violated statutes or rules. Joann Campbell was the administrator of Greenleaf at all relevant times. Background Screening On February 4, 2019, the Agency conducted a survey of Greenleaf. As part of the survey, the Agency investigator reviewed personnel files. Investigator Pellot asked Greenleaf's Administrator, Joann Campbell, about background screening for Destiny Castleberry. She asked because the paper background screening report in Ms. Castleberry's personnel file indicated that the background screening report was "awaiting privacy policy." Ms. Campbell acknowledged that was what the document said. She went on to advise Ms. Pellot that the employee had passed the background screening 2 The parties' agreement to an extension waived the requirements of Florida Administrative Code Rule 28-106.216(1). and was eligible to serve residents. Ms. Campbell immediately printed a current background screening report showing that Ms. Castleberry had passed background screening and was eligible to serve residents. The Agency representative maintains that an employee's file must have a printed copy of a completed background screening. The Agency also maintains that Ms. Pellot reviewed a personnel file for someone named Eric and that the background screening report in his file was out of date. The Agency did not offer the file into evidence. Ms. Pellot could not remember the employee's last name. A different Agency witness said that she looked for Eric, last name unknown, in the Level II Background Screening Clearinghouse and "it told me that his background screening was not valid." The Agency did not offer a printout demonstrating the information stored in the Clearinghouse or offer persuasive evidence that the investigator even searched for the correct name. The testimony was insufficient to prove this employee did not have a current background-screening document.3 Adverse Incident Report Agency Investigator Pellot conducted a complaint survey of Greenleaf on December 30, 2019. Information from this survey is the basis of the charge that Greenleaf did not make a required adverse incident report. Ms. Pellot testified about reports she read of Resident 40 leaving Greenleaf, the staff either being unaware of his departure or thinking he left with family, him falling while not at the facility, and him being taken to a hospital emergency room. The documents she reviewed were reports by individuals who did not testify. The documents were not offered into evidence. Ms. Pellot also testified about the contents of a facility log for Resident 40. (Tr. V. I, p. 144). Her testimony about the interviews of staff and documents she reviewed is 3 The Agency did not offer an explanation why it waited until it issued the Administrative Complaint in Case No. 20-1890 on March 26, 2020, to take action on an alleged violation on February 4, 2019, over a year earlier. hearsay. The statements in the documents themselves are also hearsay.4 Further there is not a record sufficient to establish that the contents of the documents Ms. Pellot described would meet the business records hearsay exception in section 90.803(6), Florida Statutes. The Agency did not offer any of the documents, including the facility log, into evidence. An admission of Greenleaf administrator, Joann Campbell, did establish that Greenleaf had filed a "one-day" adverse incident report about Resident 40 but had not filed a "15-day" adverse incident report. § 90.803(18)(e), Fla. Stat. The admission goes only to filing of a report. It did not involve or prove any of the assertions about the facts of the incident, necessary to determine if the incident was one that had to be reported as the Agency advocates. The Agency did not offer the incident report into evidence. Ms. Campbell tried several times to submit a "15-day" adverse incident report. She was unable to because the website that the Agency requires ALFs to use to submit adverse incident reports was malfunctioning. Training Due to a tragic fire, the Agency charged Greenleaf with providing inadequate safety training. Greenleaf has a "Fire Safety Plan," which was in effect at all relevant times. It included the following section. Fire Safety Training A record of monthly fire drills is kept and logged by the Assistant Administrator. The day after each drill a staff meeting will be called and mistakes will be discussed and solutions to problems will be recommended. Training in Fire Control: In-service for staff regarding Fire Safety and Disaster Plans will be done every first Wednesday of each month on the = Use of fire extinguishers, confining and securing areas in case of fire. 4 The undersigned noted the reliance upon hearsay and the limits of its use many times during the hearing. Fire Plan: All personnel should be familiar with the plan by frequent in-service. For new employees, copies of disaster plan will be handed. Unannounced fire drills to be conducted on an ongoing basis. Greenleaf did not provide in-service training regarding Fire Safety and Disaster Plans on the first Wednesday of each month as provided in its fire safety plan. It also did not provide training in use of fire extinguishers on the first Wednesday of each month as provided in one "Annex A" to its fire safety plan. (Ex. 35-15). Similarly, it did not conduct monthly fire drills as provided by another "Annex A" to its fire safety plan. (Ex. 35-11). Greenleaf did, however, provide fire safety and emergency training to its employees. Greenleaf conducted four fire drills per shift per year for its employees, resulting in each employee participating in four drills per year. Employees, including Ms. Drybola and Ms. Terredanio, and residents, participated in the drills. The drills included review of use of a fire extinguisher. The review did not include physically using a fire extinguisher. Verbal and video instruction was provided. Use of a fire extinguisher is one of the first trainings Greenleaf provided new employees. The drills did not specifically address the circumstance of a resident literally catching fire or a resident being covered with flaming fabric. The undersigned recognizes that some employees testified, albeit inconsistently, that they had not been trained. However, other testimony of the same employees about what they did and why indicates that they had received training. For instance Ms. Drybola, when asked what she would have done based on a normal fire drill, responded by saying she would assist a resident with clothes on fire by using a wet or fireproof blanket. When asked if the day's event went like previous fire drills, she responded "no." She did not respond that there had been no fire drills. She also stated, "This time we had a real person," implying that she had been through the procedures before without "a real person." (Tr. V. 3, p. 425). This testimony indicates she had received training. Ms. Drybola also acknowledged receiving emergency training on August 26, 2019. The testimony of Mr. Harman similarly indicates that Greenleaf trained its employees. He said that he had not received training. Yet he said he received verbal instructions on how to respond to an emergency for evacuation. (Tr. V. I, p. 122). He also referred to having had a fire drill two or three months before the incident. (Tr. V. I, p. 127). Mr. Harman also referred to the fire drill training as mandatory. Ms. Terredanio's testimony also supports finding that Greenleaf trained its employees in fire safety and other emergency procedures. The fact that she could describe how to use the fire extinguisher enhanced her credibility and persuasiveness. Furthermore, Ms. Terredanio described other emergency responsibilities and procedures. (Tr. V. IV, pp. 465-468). The employees received training in emergency procedures, including fire safety procedures. The statements of some employees about not receiving training appear to be due to difficulty understanding questions, nervousness, and a lack of clarity in questions about what "training" is. The training was irregular. The Agency did not prove that the training was inadequate. It did not prove what the training consisted of or how frequently it occurred, even though Agency employees knew Greenleaf's plan provided for a training log that could have been offered into evidence. The Agency could have offered personnel files into evidence to demonstrate employees had not received training. The Agency did not do this. In addition, the Agency did not offer testimony from a witness qualified under section 90.702 to offer an opinion about what adequate emergency training would be. The Fire A tragic and fatal fire on January 25, 2020, is the genesis of Case No. 20-1469. The incident was recorded by a video camera facing down a hallway. The 15 minute, 33 second video records events occurring on one section of one hallway in a two-story building. The findings here are based on review of the video recordings and testimony from two employees who worked to save the resident. The recordings and employee testimony are the only direct and persuasive evidence of events. The fire started in room 9 on the first floor. Resident 1, a smoker with lung problems who used an oxygen concentrator, lived in Room 9. That day an oxygen concentrator was in the room. Around 1:25 on the afternoon of January 25, Erin Drybola, who served Greenleaf residents as a caregiver and provided housekeeping services to Greenleaf, heard a fire alarm sounding off. She ran toward the alarm and found a fire in room 9, where Resident 1 was. Smoke began to fill the hallways. The fire sprinklers activated and emergency lights began flashing. Ms. Drybola beckoned for help and entered the room. She found Resident 1 in her wheelchair, beside the bed, engulfed in flames. Ms. Drybola called for Marietta Terredanio to come help. Smoke quickly grew thicker. Another employee in the hall, closer to the lobby, began directing residents toward the lobby exit on the south side of the building. A worker dressed in scrubs also evacuated residents through a west side exit on the dining room end of the hall. A male staff member ran down the hall toward another area of the facility to assist residents with evacuation. Ms. Drybola ran to get a telephone and returned with it, calling as she ran. This took approximately 23 seconds. More residents hastened toward the dining room, west exit area, with encouragement from staff. Ms. Drybola re- entered the room with the fire. Resident 1's wheelchair and a lap blanket or wrap of some sort covering her lower body were burning. Ms. Drybola and Ms. Terredanio tried to extinguish the flames with a blanket, although it was not a "fire blanket." Their efforts failed. Ms. Drybola and Ms. Terredanio moved Resident 1 in the flaming wheelchair from room 9 to the hall because of the danger that the oxygen concentrator posed. At this time, approximately one minute and 27 seconds after the alarm sounded, smoke made it almost impossible to see except the area around the wheelchair illuminated by the fire. Ms. Drybola pushed the wheelchair down the hall to a more open area in front of an elevator. This kept the burning wheelchair and resident from blocking the hall. At this point, the smoke was so thick, only the resident and her wheelchair are visible in the recording. Ms. Terredanio ran to get pitchers of water from the kitchen adjacent to the dining room to pour on the flames. Ms. Drybola did too. These trips resulted in the resident being left alone for brief periods. The resident struggled to leave the wheelchair. Although the video does not have sound, Resident 1's moving lips and heaving chest indicate she was crying or screaming. Ms. Drybola made three trips, each with two pitchers of water. Ms. Terredanio made one trip. Ms. Drybola and Ms. Terredanio substantially extinguished the fire within three minutes and thirty-nine seconds of Ms. Drybola hearing the alarm. Ms. Drybola and Ms. Terredanio directed more residents down the hall toward the dining room exit. Ms. Drybola supported one resident as he walked. Three rooms down from room 9 and on the other side of the hall, a fire extinguisher hung on the wall. Ms. Drybola and Ms. Terredanio did not use the fire extinguisher on Resident 1 because they feared that the chemicals in it were dangerous to a human. Their trainings had not addressed what to do when a person is aflame. A police officer arrived at about 1:29 p.m., four minutes after the alarm sounded. At almost the same time, Ms. Drybola escorted some of the last of the residents visible from the area. The officer pulled charred, still smoking fabric from the back of Resident 1's chair and from Resident 1. He was carrying a fire extinguisher. The officer put down the fire extinguisher. Like Ms. Drybola and Ms. Terredanio, the officer elected to use pitchers of water to extinguish smoldering spots on the wheelchair. Like Ms. Drybola and Ms. Terredanio, he prioritized extinguishing the fire and briefly left Resident 1 alone while he obtained more water. After giving the officer another pitcher of water, Ms. Drybola went to a barely visible area off the lobby to escort two more residents out. Another employee identified one last resident in a room beside the elevator and, along with an officer, directed him out of the area toward the dining room exit. Firefighters did not arrive until the fire was extinguished and police officers were in charge of the scene. At the time the firefighters arrived, at least three officers were tending to Resident 1, managing the scene, and directing the activities of Greenleaf employees. The video records a horrific, chaotic scene: a burning resident struggling in a burning wheelchair and smoke so thick a person could not see past her extended arm. Ms. Drybola and Ms. Terredanio acted bravely and quickly in an effort to save Resident 1 and other residents. They made their best judgment about the risks of using a fire extinguisher, a judgment validated by the officer's election to use water, not his fire extinguisher. While the events described above played out on the first floor, Kevin Harman evacuated residents from the second floor. Mr. Harman was working as cook that afternoon. He had been trained that when the fire alarm sounded the "cook is supposed to go upstairs, going door-to-door, knocking on them, opening them, making sure everybody is out." (Tr. V. I, p. 121) As soon as he heard the alarm, that is what he did. Mr. Harman went upstairs and started evacuating residents. One resident in a wheelchair had difficulty walking. Mr. Harman started taking the resident down the stairs, step by step in his wheelchair. The resident was anxious, and Mr. Harman feared he would fall. Mr. Harman changed to helping the resident scoot down the stairs on his behind. By the time they got about halfway down the stairs, two officers arrived and took over. They supported the resident walking down the stairs and out the exit. Mr. Harman fulfilled his responsibilities and evacuated the upstairs residents quickly.5 With the exception of fire extinguisher use, Greenleaf employees, visible in the video recording complied with the facility's fire safety plan. It is also important to note that the video records activities on one segment of one hall on one floor of a two-story facility. The only evidence about activities in other parts of the facility is the testimony about Mr. Harman successfully fulfilling his responsibilities. Smoke from the fire quickly obscured visibility in the hall. Moreover, the horrific, extraordinary sight and sound of Resident 1 burning was enough to cause panic in anyone, regardless of training. To the extent there is such a thing as an ordinary emergency, this was no ordinary emergency. Greenleaf took several actions after the fire. It brought in counselors to provide long-term services to residents and employees. It dramatically increased emergency training frequency, especially for fires. Smoking Policies and Practices Greenleaf permitted residents to have and use tobacco products, including cigarettes. Rule 59A-36.007(6)(d) requires an ALF to have rules and procedures that must address the facility's policies about alcohol and tobacco use. This necessarily contemplates ALF residents smoking. Greenleaf had a tobacco policy. But it was not offered into evidence. Greenleaf prohibited smoking inside the building. Gleaning from a resident's tobacco use policy acknowledgement (Ex. 52-15), the policy designated a smoking area, 5 Mr. Harman's testimony presents a good example of the weaknesses and ambiguity of the Agency's evidence. He said that he had no emergency response training. (Tr. V. I, p. 121). Yet in the next sentence he said he "was verbally told what I was supposed to do, but there was no training connected to it." Training would encompass being "verbally told what to do." Training is teaching. No specific method is required. https://www.merriam- webster.com/dictionary/train (last visited November 15, 2020.) Even the Agency's counsel's questions acknowledge verbal instruction as training. ("[Y]ou said that the only training you received was verbal instruction … ." [Tr. V. I, p. 122]). Mr. Harman was able to describe his responsibilities in an emergency. (Tr. V. I, p. 121). And he drew on that training to care for second-floor residents. prohibited smoking in bedrooms or anywhere else inside the building, and required residents to acknowledge that smoking inside the building endangered residents, staffs, and visitors. The policy apparently also provided that a resident would be given a 45-day notice or evicted for violating the smoking policy. Until the fire, Greenleaf permitted residents to keep their cigarettes and lighters in their rooms. Greenleaf employed Jackie Shelton from sometime in June 2019 to about March 31, 2020. Two or three months after she began working at Greenleaf, Ms. Shelton observed signs of residents smoking in the facility. This was no earlier than August 2019 to no later than mid-October 2019. The signs included smelling smoke in a room and seeing cigarette butts in the garbage. She verbally reported the signs of residents smoking in the facility to Ms. Campbell, the facility administrator. Ms. Campbell told Ms. Shelton that she would "look into it." Greenleaf did not have a process for monitoring resident compliance with smoking rules. There is, however, no rule or statute that requires a process. There is also no testimony from an expert qualified under section 90.702 to offer opinions that could support a finding that an ALF should have a policy for monitoring smoking by residents. The Agency maintains that Ms. Campbell knew that Resident 1 smoked in her room. The Agency, however, did not prove this. It offered only hearsay evidence of statements allegedly made by residents to Agency employees. It did not offer testimony from any of the residents. Greenleaf did learn that Resident 2 smoked in the bathroom the day after the fire. It promptly issued a warning and a "45 day notice" of eviction to Resident 2. By the time of the hearing, Greenleaf had not evicted Resident 2 because it could not find a placement for him due to his mental health issues and the limited number of ALFs with mental health licenses. After the fire, Greenleaf changed its smoking practices. It now requires residents to give their smoking materials to staff. Greenleaf staff places the materials in plastic containers kept in the kitchen or medicine room. Residents must ask for them when they wish to smoke. Greenleaf still only permits smoking in a designated outside area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 25th day of November, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 25th day of November, 2020. COPIES FURNISHED: Shaddrick A. Haston, Esquire 3812 Coconut Palm Drive, Suite 200 Tampa, Florida 33619 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Michael Roscoe, Senior Attorney Agency for Health Care Administration 545 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
