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 Whether the Agency for Health Care Administration found deficiencies at Petitioner's nursing home sufficient to support
Findings Of Fact Petitioner, Emerald Oaks, is a nursing home in Sarasota, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes. The AHCA conducted a relicensure survey of Emerald Oaks on February 29, 1996, and a follow-up survey on April 25, 1996. Both of these visits by the AHCA were unannounced. During the February survey, the AHCA reviewed seven randomly selected resident records. Eleven randomly selected resident records were reviewed by AHCA during the April 1996 follow-up survey. The sample of resident records reviewed in April was a totally different sample from those reviewed in February. Each alleged deficiency found by the AHCA during a survey is assigned a "tag" number, which relates to requirements imposed on nursing home facilities. As a result of the February survey, Emerald Oaks was cited for its failure to: (1) adequately assess residents for the potential development of pressure sores (Tag F272); (2) revise assessments as appropriate (Tag F276); (3) address pressure sores on care plans (Tag F279); (4) give appropriate care to residents to prevent pressure sores (Tag F314); (5) provide sufficient staff to meet needs of residents (Tag F353); and (6) comply with the minimum certified nursing assistant staffing requirement (N 062). The areas cited as deficiencies by the AHCA in the February 1996 survey of Emerald Oaks were not corrected at the time of the follow-up survey on the April 25, 1996. One area reviewed by the AHCA during the February survey and the April follow-up survey was staffing. With regard to staffing, applicable regulations require nursing homes to provide 1.7 hours of certified nursing assistant (CNA) hours per resident per day. To determine whether the CNA minimum staffing requirements are met, it is necessary to first obtain the total number of hours required. This is done by first multiplying the number of residents in the facility by 1.7. Next the total number of hours worked by all CNAs on the days in question must be determined. A nursing home is in compliance with the CNA minimum staffing requirements if the latter number is equal to or higher than the former number. In ascertaining whether the minimum CNA staffing requirement was met by Emerald Oaks, the AHCA relied on census data and time records of CNAs for the appropriate days that were supplied by the facility. Applying the appropriate formula to the relevant data, Emerald Oaks failed to meet the minimum CNA staffing requirements at the time of the February 1996 survey and the April 1996 follow-up survey. During the February 29, 1996 survey, the AHCA reviewed the CNA staffing requirements for January and February 1996. On nineteen days out of thirty-one days in January, Emerald Oaks failed to meet the minimum CNA staffing requirements. A review of the staffing for February 1996, revealed that Emerald Oaks failed to meet the CNA minimum staffing requirement on nineteen out of twenty-eight days. As a result of its review, the AHCA properly cited Emerald Oaks for having insufficient staff to meet the residents' needs. During the April 25, 1996 follow-up survey, again using records provided by Emerald Oaks, the AHCA properly found that the facility did not meet the minimum CNA staffing requirements. During the period from March 14, 1996 through April 27, 1996, there were twelve days that Emerald Oaks did not meet the minimum CNA staffing requirements. Another area addressed in the February survey and the April follow-up survey concerned the extent to which residents developed pressure sores. A pressure sore is a wound on the skin caused by pressure. These wounds are staged I through IV, with IV being the most severe. At Stage I the wound is usually a red area; at Stage II it is an open area; at Stage III the wound is deeper and involves muscle; and a Stage IV pressure sore involves bone, muscle, tissue and nerves. Federal Rule, 42 C.F.R. 483.25(c), requires that a nursing home resident not develop pressure sores unless the individual's clinical condition demonstrates that the sores were unavoidable. If a resident has pressure sores, nursing homes must provide treatment and services necessary to promote healing and prevent new sores from developing. Most pressure sores are avoidable and can be prevented, by diligent turning of residents, at least every two hours, to relieve pressure on a given area of skin. Ordinarily, if these procedures are followed, residents should not develop pressure sores unless the resident is debilitated, that is suffering from a serious disease such as cancer. The February 1996 survey and the April 1996 follow-up survey revealed a high incidence of pressure sores among the residents of Emerald Oaks. At the time of the February 1996 survey, twenty-two percent (22%), or nineteen Emerald Oaks residents, had pressure sores. Of these residents fourteen had pressure sores which were in-house acquired and for which there is no clinical explanation. This percentage was high when compared to the industry average of five percent (5%). At the time of the April 1996 follow-up survey, the percentage of Emerald Oaks residents who had pressure sores remained high, at twenty-one percent (21%). Among the records reviewed as a part of the February 1996 survey were those of Resident 1, Resident 3, and Resident 7. With regard to Resident 1, the records indicate that on January 1, 1996, when first admitted to Emerald Oaks, this resident had an open area on the left outer ankle. However, by February 29, 1996, Resident 1 had developed two more pressure sores while residing in Emerald Oaks. Based on the condition of Resident 1, these in-house acquired pressure sores were avoidable and could have been prevented with proper turning and repositioning of the resident. The February 1996 review of Resident 3's records indicate that this resident was admitted to Emerald Oaks on February 9, 1996 with a Stage II pressure sore on her right buttock. By February 22, 1996, the pressure sore had increased to a Stage IV. Given Resident 3's condition, the worsening of the pressure sore was avoidable with proper care of the resident. It should not have increased in severity in less than two weeks. According to records reviewed during the February 1996 survey, Resident 7 had no pressure sores when admitted to Emerald Oaks in November or December 1995. However, on January 13, 1996, a Stage III pressure sore was first observed on this resident and noted by Emerald Oaks staff. Although Resident 7 was at risk for pressure sores due to his decreased mobility and incontinence, with proper turning and repositioning of resident, the in-house acquired pressure sore was avoidable. The April 1996 follow-up survey also revealed that residents who had no pressure sores when admitted to Emerald Oaks, developed avoidable pressure sores while at the facility. Furthermore, at least one resident had one Stage I pressure area and one Stage II pressure sore at the time of admission to Emerald Oaks, but shortly after coming to the facility developed two more pressure sores. These two in-house acquired pressure sores, staged as a II and a III, were avoidable. In both the February and April surveys, the in-house acquired pressure sores were avoidable, notwithstanding the fact that many of the residents were a high risk for developing them. The high risk was related to conditions such as the residents' decreased mobility or immobility. Residents with these conditions required a great deal, if not total assistance, from the Emerald Oaks staff in moving from one position to another. Consequently, with proper turning and repositioning, these pressure sores were avoidable. While conducting the February 1996 and April 1996 surveys, the AHCA surveyors also reviewed the records of residents to determine the sufficiency of resident assessments and their care plans. The assessment process includes the following distinct components: the minimum data set (MDS), which is essentially a checklist of approximately 18 areas of potential concern. the RAPS (Resident Assessment Process) keys, which are cues found in the assessment instrument to make further inquiry into certain triggered areas to look for any problems for the resident. the RAPS, which is the process of using the RAPS key cues to assess whether there are problems for the resident. Care Plan, which is an individualized document which describes how the agency will care for the resident. In determining whether Emerald Oaks was in compliance with the prescribed assessment process, AHCA surveyors properly relied on information available in the residents' charts and documentation provided by staff of Emerald Oaks at the time of the surveys. In the February 1996 survey and the April 1996 follow- up survey, the AHCA found that Emerald Oaks completed the MDS function for most residents. However, Emerald Oaks failed to complete the RAPS process, by looking for the triggered cues from the MDS and pursuing appropriate follow-up questions as mandated by applicable federal forms. In the February 1996 survey and the April 1996 follow- up survey of Emerald Oaks, a review of the assessment process revealed that the required forms were generally incomplete, inaccurate, and not current or comprehensive. There were problems related to the assessment process in all seven of the files reviewed by the AHCA during the February 1996 survey. When the April 1996 follow-up survey was conducted, these problems had not yet been corrected by Emerald Oaks. Of the eleven files reviewed during the April 1996, follow-up survey, seven were deficient in the assessment process areas. During the February 1996 survey, the following deficiencies were revealed: (1) the RAPS for Resident 1 was incomplete and the Care Plan failed to address an identified medical condition; (2) the Care Plans for Residents 2 and 5 were unavailable; (3) the RAPS for Resident 3 was unavailable; (4) the Care Plan for Resident 4 was not updated to reflect significant changes; (5) the Care Plan of Resident 6 failed to identify goals and approaches which addressed an identified problem; and (6) the MDS and Care Plan of Resident 7 was not updated to address significant changes in the resident's condition. Deficiencies which existed at the time of April 1996 survey included the following: (1) Resident 1's assessment was not updated to reflect a Stage IV pressure sore; (2) the Care Plan of Resident 2 lacked measurable goals; (3) the Care Plan of Resident 3 was not updated to reflect significant changes; (4) Resident 6's Care Plan did not address pressure sores although the condition was addressed on MDS; (5) the RAPS for Resident 7 was incomplete and there was no documentation that weekly skin assessment were performed; (6) Resident 11's assessment was not updated to reflect the development of seven pressure sores, where none previously were present; and (7) the Care Plan goals for Resident 5 were global, not individualized. All of the violations for which Emerald Oaks was cited in the February 1996 and April 1996 surveys were Class III deficiencies with the exception of the F314 deficiency, which was a Class II deficiency. Tag 314 was deemed to be a Class II deficiency because of the number of residents who had developed pressure sores and the harm that they could cause residents. An additional consideration was that the in-house acquired pressure sores were avoidable. The AHCA surveyors conducting the February 1996 survey and the April 1996 follow-up survey properly considered all records that were available and provided on the dates the surveys were performed. Based on information made available by Emerald Oaks, the AHCA correctly found that the percentage of residents with pressure sores was higher than the industry average; the assessment process was deficient; and the required staffing ratio was inadequate and did not comply with applicable rules and regulations.
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 issuing a conditional rating to the Emerald Oaks Care Center. DONE and ENTERED this 8th day of May, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire R. Davis Thomas, Jr. Qualified Representative Broad and Cassel Suite 400 215 South Monroe Street Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration Suite 3431 Fort Knox Building Three 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Did Respondent, Green Masters, Inc. (Green Masters), discriminate against Petitioner, Pablo Raya Lopez, on account of his age?
Findings Of Fact Mr. Lopez was 65 years old at the time of the hearing. He has worked for Green Masters since 1988 as a laborer. (The Commission's Investigative Memorandum incorrectly states that Green Masters discharged Mr. Lopez; he remains employed with Green Masters.) Green Masters is a wholesale nursery located in Apopka, Florida. It primarily produces potted flowering plants. Green Masters grows the plants in greenhouses, shade houses, or outside in the full sun. It employs full-time and part-time workers. The work involves planting, potting plants, moving plants, re-potting plants, and packaging plants for shipping. It is a low-tech, labor-intensive business. The business is also seasonal. Consequently, the length of the work week varies depending upon the season. Mr. Lopez makes only one claim of an overtly discriminatory action or statement. He claims that the vice-president of Green Masters, Filip Edstrom, told him that he was unable to work the same as he did 20 years ago because of his age. The weight of the credible evidence did not establish this claim. Mr. Lopez's belief that Mr. Edstrom made this remark likely flows from Mr. Lopez's difficulty understanding English. During 2011, the hourly compensation Mr. Lopez received from Green Masters declined. The decline was not due to actions taken because of Mr. Lopez's age. It was due to changes in the compensation system and changes in Mr. Lopez's work assignments. In 2011, Green Masters removed Mr. Lopez from the potting crew. This was because of Mr. Lopez's difficulty reading and understanding written instructions. Over the years, the nursery business had evolved so that written instructions and record-keeping became important parts of the potting crew's functions. Mr. Lopez was not able to perform these parts of the potting job. The difficulty with reading and writing, for instance, resulted in him re-potting 80 plants incorrectly. Consequently, he was unable to work alone re-potting. Green Masters need the potters to be able to work alone. That is the reason he was removed from the potting crew. Before August of 2011, Green Masters paid its full-time employees at rates established through a historical practice of giving regular pay increases, regardless of the development or decline of an employee's assignments, skills or productivity. In August 2011, Green Masters revised its pay structure significantly. The changes reduced pay rates for all employees. It broke all jobs performed in the greenhouse into three pay groups based on pay rates of $9.00, $11.00, and $13.00, depending on the skill level needed for the job. Green Masters changed the system to cure a lack of compensation standards that had developed over the years and to standardize pay rates based upon the work performed. Mr. Edstrom conducted several meetings with the employees to explain the new system. The Green Masters grower, Doug Abele, and crew foreman, Guillermo Zamora, sat in on every meeting. Mr. Zamora acted as an interpreter since most of the employees are Spanish speakers with limited understanding of English, and Mr. Edstrom's Spanish is limited. Picking up, moving, setting out, spacing, and dumping plants in the greenhouse and mixing plants and loading boxes are the primary tasks of the $9.00 base pay group. The $11.00 base pay group's primary tasks are picking plants for customers, potting, planting, pinching off bad buds and flowers, and other specialized tasks. More highly specialized tasks, such as specialized maintenance and cutting, are in the $13.00 base pay group. These tasks required a specific skill set and/or extensive training. The base pay rate for each employee is adjusted to account for quality of work, reliability, tenure, and compliance with instructions. Employee pay varied depending upon which pay group's tasks they were performing. They did not always remain in the same pay group in the course of a work week. Green Masters assigned employees to tasks and pay groups based upon their skill sets, the jobs available, and the employee's capabilities. The compensation system changes affected all employees. The compensation of eight employees decreased. For three of the employees, the decrease was greater than $1.00 per hour. In the past year, Mr. Lopez has worked fewer hours than he did in previous years. In 2010, he worked the second most hours of all employees. In the first quarter of 2012, he was 20th out of 25. Mr. Lopez's eyesight was also deteriorating. Because of this, he became unable to reliably identify and remove bad buds or flowers. This eliminated his ability to pack plants. Along with his inability to process the paperwork involved in re-potting, this limited his ability to perform tasks in the higher pay groups. For Mr. Lopez, the effect of these changes was that his base rate declined from $10.83 in 2011 to $9.06 in 2012. The number of hours that Mr. Lopez worked declined also. In the past two years, the hours worked by all employees have declined by almost ten percent. All of these factors combined to result in Mr. Lopez's pay declining. He is understandably upset by this. But the credible, persuasive evidence does not establish that the decline in pay was due to discrimination on account of Mr. Lopez's age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Pablo Raya Lopez in FCHR Case No. 2012-01289. DONE AND ENTERED this 30th day of January, 2013, 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 30th day of January, 2013.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner timely submitted her application for home energy assistance and the respondent timely notified her that her application had been denied for the reason that her household income exceeded the limit for her household size. Petitioner Randolph resides with her fourteen year old daughter and receives Social Security income in the monthly amount of $522.00. For a household with two persons, the maximum monthly income consistent with eligibility for benefits under the Low-Income Home Energy Assistance Program is $474.00. Rule 10C-29.13(5)(a), Florida Administrative Code. Petitioner Randolph uses oxygen on a twenty-four hour daily basis, and needs to use air conditioning in her home due to a chronic pulmonary condition. This condition, as well as other physical ailments, results in substantial medical bills on a monthly basis.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for benefits under the Low-Income Home Energy Assistance Program be DENIED. Respectfully submitted and entered this 21st day of June, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 21st day of June, 1982. COPIES FURNISHED: Mary F. Randolph 9310 Grandfield Road #A Thonotosassa, Florida 33592 Amelia Park, Esquire District VI Legal Counsel W. T. Edwards Facility 4000 West Buffalo Avenue Tampa, Florida 33614 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether Petitioner is eligible for firefighters' supplemental compensation.
Findings Of Fact Petitioner, John T. White (White), is certified as a firefighter and is currently employed by the Pembroke Pines Fire Department. White has a Bachelor of Arts Degree from Barry University. His college transcript lists his major as communication arts. White applied to the Respondent, Department of Insurance (Department), for Firefighters' Supplemental Compensation. At the time he applied, White was employed by the Pembroke Pines Fire Department as a firefighter/EMT. He submitted a job description to the Department as part of his application. The job description provided that the characteristics of the position of a firefighter/EMT were the following: Under the general supervision of the Fire Lieutenant, is responsible for extinguishing fires, rescuing persons and property from danger and performing salvage and related follow-up work. Incumbents are also required to perform life-saving rescue techniques as part of a fire rescue operation or as part (sic) as of other emergency operations. While emergency responses constitute the primary focus of a firefighter's responsibility, considerable time is spent in study, training, inspecting and maintaining equipment and apparatus, and in cleaning and maintaining quarters. Duties involve functioning as an integral part of a work unit in order to ensure the safe and efficient performance of duties. Work is performed in accordance with direct instructions and well defined routines and under the immediate supervision of a superior officer or paramedic. Work is reviewed through observation for adherence to established policies and procedures. The Department denied the application for supplemental compensation on the ground that White's major in communications arts was not a major study concentration area that is readily identifiable as applicable to fire department duties. The Department considers only those major study concentration areas which are listed in Rule 4A-37.084(5), Florida Administrative Code, to be areas which are readily identifiable as applicable to fire department duties. Communication arts is not a major study concentration area listed in Rule 4A- 37.084(5). After White submitted his application to the Department, he changed positions with the Pembroke Pines Fire Department and became a fire inspector/investigator. In that position, White is responsible for making building inspections, annual inspections, oral presentations on fire prevention and safety to school children and other community groups, and fire investigations. He has daily contact with the public. There is no official job description for Pembroke Pines Fire Department fire inspector/investigators. White advised the Department that he had changed positions after the Department denied his application for supplemental compensation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying John T. White's application for Firefighters' Supplemental Compensation. DONE AND ENTERED this 26th day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 26th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1380 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: It is accepted that the Department was informed after White's application had been denied that White had changed positions with the fire department. Paragraph 2: It is accepted that a degree in communications may be helpful in the position of fire inspector/investigator but reject that the major is readily identifiable as applicable to fire department duties. The rest is rejected as constituting argument. Paragraph 3: Rejected as constituting argument. Paragraph 4: Accepted in substance. Paragraphs 5-7: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as unnecessary. Paragraphs 5-12: Accepted in substance. Paragraphs 13-19: Rejected as subordinate to the facts found. COPIES FURNISHED: John T. White 731 Northwest 86th Terrace Pembroke Pines, Florida 33024 Joe W. Demember, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, Plaza Level-11 Tallahassee, Florida 32399
