Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the [5 day of duly , 2010, in Tallahassee, Florida. Thomas W. Arnold, —__fe Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT Filed July 20, 2010 9:57 AM Division of Administrative Hearings. WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Monica Ryan, Assistant General Counsel Agency for Health Care Administration (Interoffice Mail) Kathleen R. Montemayor, M.D. 6352 River Road New Port Richey, FL 34652 (U.S. Mail) The Honorable Daniel M. Kilbride Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Mike Blackburn, Bureau Chief, Medicaid Program Integrity Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Agency for Health Care Administration (Interoffice Mail) Health Quality Assurance Agency for Health Care Administration (Interoffice Mail) Department of Health License No.: ME0037970 (E-Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail and/or interoffice ; ; ”h mail on this the 1 7 day of nly. 2010. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Phone: (850) 412-3650 Fax: (850) 921-0158
The Issue The issue to be determined is whether Bradford County meets the criteria listed in Florida Administrative Code Rule 62-330.051(4)(e) for a road repair exemption.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Dr. Still resides at 14167 Southwest 101st Avenue, Starke, Florida. That property abuts work that was performed pursuant to the Exemption. The District is a water management district created by section 373.069(1), Florida Statutes. It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The District, in concert with the Department of Environmental Protection, is authorized to administer and enforce chapter 373, and rules promulgated thereunder in chapter 62-330, regarding activities in surface waters of the state. The District is the permitting authority in this proceeding and issued the Exemption to the County. The County is a political subdivision of the State of Florida. The County is responsible for keeping county roads and structures within its boundary in good repair and for establishing the width and grade of such roads and structures. §§ 334.03(8) and 336.02(1)(a), Fla. Stat. 101st Avenue, a dirt road, was constructed decades ago and runs in a general north/south direction for several miles. It was in existence, publicly used, and under County maintenance long before January 1, 2002. Dr. Still acknowledged that when he purchased his property in 1996, the road was publicly used and was being maintained by the County. The centerline of 101st Avenue has existed in its current position as long as Mr. Welch, the Bradford County surveyor, has been familiar with the property, since at least 1996. The County owns and is allowed to use a 60-foot right-of-way (“ROW”) extending 30 feet to either side of the centerline. The driving surface of 101st Avenue has consistently been from 20 to 22 feet in width, with drainage structures extending further into the ROW. The evidence was convincing that 101st Avenue was regularly maintained or repaired by the County for more than seven years prior to the Exemption. The evidence was equally convincing that, during that period, the width of the road that actually has been maintained or repaired is substantially -- if not identically -- the same as the width of 101st Avenue after the road repairs under the Exemption were completed. 101st Avenue was, prior to the exempt road repair work, “very wet” during rainy periods, and cars and trucks would routinely get stuck in the mud. Mr. Welch testified credibly that 101st Avenue was “a mess” even before the events that led to the work covered by the Exemption. It is reasonable to conclude that the driving surface of 101st Avenue may have shifted by a matter of feet in either direction over the years prior to the exempt road repairs, which would have generally been the result of persons driving off of the driving surface to escape impassable areas, and of the imprecision inherent in grading a dirt road with a large motor grader. The evidence established that the County has maintained 101st Avenue at a location as close to the established centerline as possible, and has not intentionally moved or realigned 101st Avenue from its historic location. Mr. Welch was very familiar with 101st Avenue, having used it numerous times, including during the period leading up to the events that precipitated the road repair work at issue. He testified to two surveys he performed of the area, first in 1996, and again in the vicinity of the Still property in May 2017. He testified that 101st Avenue was under County ownership and maintenance prior to his first survey in 1996. Photographic evidence offered by Dr. Still showed 101st Avenue to be significantly degraded near his property for several years leading up to 2017. Turbidity of the waters passing alongside and under 101st Avenue was “a long ongoing issue with this road,” dating back to at least 2015. 101st Avenue “was in pretty poor shape” in January 2017. Cars would routinely go around wet areas on the driving surface and possibly onto Dr. Still’s property. That gave the appearance of a change in the eastern ROW. Over a period of years prior to the Exemption work, the ROW may have crept eastward as the road was graded, ditches were maintained, and residential traffic diverted around impassable areas. The shift could have been as much as 10 to 15 feet, but the evidence establishing such was neither precise nor compelling. However, even if the ROW shifted over time, the movement was not the result of intentional operation and maintenance by County staff, but was a gradual, unintentional movement over time. Such a gradual shift is common with dirt and limerock roads. Furthermore, the alignment of the travel surface was stable, and was always within the 60-foot ROW, although the stormwater structures may have gone beyond the ROW. In August 2017, a series of storm events caused 101st Avenue to be flooded. Dr. Still testified that the existing road and ditches and most of the areas adjacent to his property were “destroyed” by continued public use after the August 2017 rain event. He believed there was no way to ascertain the alignment of 101st Avenue. Around September 10, 2017, Hurricane Irma impacted the County, causing substantial flooding and damaging numerous dirt and limerock roads in the County, including 101st Avenue. 101st Avenue was partially damaged from flooded conditions, and rendered completely impassable at places along its path, which led motorists to drive off of the established roadway onto adjacent properties to get through. The diversion of traffic off of the road surface was due to the personal decisions of the public using the road, and was not the result of any direction, operation, or maintenance by County staff. 14 After Hurricane Irma, Governor Scott issued emergency orders that allowed local governments to undertake necessary repairs to roadways. The County issued similar emergency orders.1 In November 2017, Mr. Welch performed a survey to establish the alignment of the road. 101st Avenue was partially repaired consistent with the survey and pursuant to the emergency orders, with the work beginning in December 2017. As the work to repair 101st Avenue was proceeding, Dr. Still asserted that the ROW encroached onto his property. He and Mr. Welch walked the property line, noted that the ROW appeared to extend across a fence installed on the west side of 101st Avenue, and staked the disputed area. Though the County believed it was working within its ROW, it decided, more as a matter of convenience to avoid the time and expense of litigation, to purchase the disputed area. Thereafter, on January 5, 2018, the County purchased 1.78 acres of property from Dr. Still, which was incorporated into the County ROW.2 The purchase of the property, and establishment of the undisputed ROW, was completed well before the December 23, 2019, filing of the Petition. The travel surface of the road remained within the prescriptive and historical ROW. The “footprint” of 101st Avenue was the same before and after the road repair work. Dr. Still admitted that the road had not “physically moved.” However, he believes that the County’s use of the 1 Since the Exemption work was largely (and lawfully) performed under the emergency orders, the County’s Exemption application was filed after the repair work had begun on 101st Avenue, and is considered an after-the-fact application. The application for the Exemption was originally filed pursuant to rules 62-330.051(4)(b) and (e). The County thereafter withdrew its request for an exemption pursuant to rule 62-330.051(4)(b), and limited its Exemption to rule 62-330.051(4)(e), which establishes the standards at issue in this proceeding. The District’s December 10, 2019, proposed agency action granted the Exemption for resurfacing the entirety of the length of 101st Avenue. 2 The evidence was not sufficient to establish that the ROW actually encroached onto Dr. Still’s property. It is equally plausible that the fence encroached into the 101st Avenue ROW. Nonetheless, the issue was -- or should have been -- resolved when the County agreed to pay Dr. Still to extinguish any plausible claim to the property in dispute. 1.78 acres of purchased property for the ROW constitutes a realignment of 101st Avenue. From an engineering perspective, as long as a road surface is within an established ROW, and there has been no intentional change in its direction or trajectory, the road is not “realigned.” The evidence established that 101st Avenue remained within its established ROW, and there was no intentional change in its direction or trajectory from the repair work. The work performed under the exemption involved grading 101st Avenue along its entire length, and applying asphalt millings and a sealant to stabilize the travel surface. The asphalt millings placed on the 101st Avenue travel surface were applied on top of the “as-is” existing limerock. The millings provided structure and stability to the travel lanes, and eliminated erosion and the large muddy bogs that were a feature of the road during the rainy season and after storms. There was no persuasive evidence that the millings materially raised the height of the road travel surface. Mr. Rischar testified that 101st Avenue, after the road repair work, is now in good condition and intact. The asphalt millings are not “loose” but are bound together. The work stabilized the roadbed, provided structural integrity, and improved water quality as compared to a simple graded road. His testimony is accepted. Dr. Still produced several photographs depicting a small pile of dirt near a roadside ditch near the drainage culvert under 101st Avenue. The pile pre-dated the Exemption work. Ms. Diaz testified that the mounds had been “taken care of,” and they do not appear in any post-Exemption photographs. There was no evidence of any excavated material having been deposited at or near the Still property from the exempt road repair work. As part of the Exemption work, drainage structures were incorporated to receive and convey stormwater from the road surface. Rule 62- 330.051(4)(e)5. requires that work performed under a road repair exemption incorporate “[r]oadside swales or other effective means of stormwater treatment.” The evidence was not sufficient to demonstrate that the stormwater structures incorporated along 101st Avenue met the stringent criteria for “swales” as set forth in the Applicant’s Handbook, Volume II, §§ 5.5.1 and 5.5.2. However, the testimony was convincing that the drainage work incorporated into the road repairs was an “other effective means of stormwater treatment.” Dr. Still’s testimony as a “citizen scientist” was not sufficient to overcome the expert testimony offered by the County and the District. During the initial phases of the work, when the County was acting under the post-Irma emergency orders, the County had not installed silt fences. Dr. Still complained to the County, and silt fences and turbidity curtains were installed. Dr. Still admitted that they “functioned fairly well.” The silt fences and turbidity curtains were installed prior to the December 23, 2019, filing of the Petition. The turbidity curtains and silt screens met best management practices (“BMPs”). BMPs are generally construction-related practices, and are not designed for the “operation” of a facility after conditions have stabilized. Compliance with BMPs is intended to demonstrate compliance with water quality standards. Ms. Carr directed the County to remove the turbidity control curtains prior to her last inspection since the area had stabilized. While photographic evidence depicted differences in the appearance of water in the roadside ditches from that flowing under the road from forested areas to the west, the photographs were not sufficient to establish violations of state water quality standards for turbidity. A turbidity violation is, by definition, a reading of 29 Nephelometric Turbidity Units (NTUs) over background as measured by a meter. Fla. Admin. Code R. 62-302.530(69). Ms. Carr testified credibly that one cannot gauge water quality from a picture, and that the photographs she took on her December 20, 2018, site visit did not depict the conditions “in real life.” District employees who visited the area, including Ms. Carr, saw nothing that raised water quality concerns. The appearance of the water in photographs is not sufficient to demonstrate that the County failed to control turbidity, sedimentation, and erosion during and after construction to prevent violations of state water quality standards due to construction-related activities. Dr. Still was critical of the District inspectors for failing to take turbidity samples using calibrated meters. However, he did not take such samples himself, and was not able to offer proof of any violation of water quality standards due to the exempt road repairs. Rule 62-330.050(9)(b)5., read in conjunction with rule 62- 330.051(4)(e)8., provides that the “construction, alteration, and operation” of exempt road repair work shall not “[c]ause or contribute to a violation of state water quality standards,” and that “[t]urbidity, sedimentation, and erosion shall be controlled during and after construction to prevent violations of state water quality standards.” The rules establish that the standards and conditions apply to the exempt work being performed, and not to conditions in the area that may have existed prior to the exempt work. The issue of turbidity, though discussed at length during the hearing, was resolved conclusively when Dr. Still admitted that turbidity was not made worse by the road repairs. Furthermore, a preponderance of the evidence established that the structure and stability provided to the travel lanes improved the turbidity and sedimentation that pre-dated the road repair, and reduced erosion of the road, not only by the repair of the road itself, but by eliminating the need to drive off of the road surface to avoid and bypass impassable areas. The Exemption work included the replacement of a culvert under 101st Avenue. At some time between January 8, 2018, and January 19, 2018, an existing 30-inch culvert was removed and replaced with two 24-inch culverts. Dr. Still complained that the 24-inch culverts were resulting in flooding of his property. Therefore, on or about December 17, 2019, prior to the December 23, 2019, filing of the Petition, the 24-inch culverts were removed, and a 30-inch culvert was installed to match the size and capacity of the previously existing culvert, and return the area to its pre-existing condition. There was no evidence that the current 30-inch culvert has resulted in any flooding. Since the 30-inch culvert reestablished the pre-Exemption condition, a strong inference is drawn that the exempt work will not “cause adverse water quantity or flooding impacts to receiving water and adjacent lands.” Rather, the evidence establishes that water quantity impacts, if any, were in existence prior to the exempt road repairs.3 The work was not related to the alteration or maintenance of a “culverted roadway crossing,” despite the culvert work. Thus, the previous inclusion of rule 62-330.051(4)(b) as a basis for the County’s Exemption request was withdrawn. The District accepted that withdrawal, and its notice of Exemption did not include any reference to the culvert. As indicated in the Preliminary Statement and the amended disposition of the Motion in Limine, the road repair Exemption does not explicitly address culvert replacement. Therefore, any allegation that the replacement of the culvert was a violation of District permitting standards must be taken up with the District as an exercise of its enforcement discretion, and is not an issue in this proceeding. Dr. Still produced photographs that were described as depicting “sediment” that was deposited along a “canal” on his property between 101st Avenue and a cleared utility easement. To the extent the photographs depicted sediment as described, which was not visually apparent, they were not sufficient to prove when any such sediment was deposited, or whether the sediment was related to the road repairs performed under the Exemption. 3 Again, simplistically, work performed under the road repair exemption is not designed to make pre-existing water quality and water quantity issues better, it just cannot make those conditions worse. Mr. Rischar testified convincingly that there was no scientific data to support a determination that there are water quality issues, including turbidity, at the roadway. Dr. Still produced photographs of the post-Exemption condition of 101st Avenue with several comparatively tiny depressions that, if never maintained, would presumably develop into potholes. Despite the nascent depressions, the road appeared to be vastly improved from its condition prior to the repairs, as evidenced by Dr. Still’s pre-Irma photographs. Mr. Rischar testified credibly that any roadway, from the least developed dirt road to the most highly developed interstate highway can, and does, develop holes in the travel surface over time. For that reason, governmental bodies, including the County, maintain roads, including 101st Avenue. The photographs provide no support for a finding that the exempt road repairs have resulted in any violation of a standard in either rule 62-330.051(4)(e)8. or rule 62- 330.050(9)(b)5. The evidence established that 101st Avenue was regularly maintained and repaired by the County for more than seven years prior to the Exemption, and that the road repairs did not realign, expand the number of traffic lanes, or alter the width of the existing road. The evidence established that the work performed under the Exemption did not realign 101st Avenue. The repairs to 101st Avenue included work reasonably necessary to repair and stabilize the road using generally accepted roadway design standards. The evidence demonstrates that no excavated material related to the work under the Exemption was placed at or near Dr. Still’s property or, for that matter, anywhere along 101st Avenue. The evidence established that the repairs to 101st Avenue did not adversely impound or obstruct existing water flow, cause adverse impacts to existing surface water storage and conveyance capabilities, or otherwise cause adverse water quantity or flooding impacts to receiving waters and adjacent lands. The evidence was not sufficient to establish that the road repair work caused or contributed to a violation of state water quality standards. Ultimate Findings of Fact The greater weight of the competent substantial evidence establishes that 101st Avenue was in existence long before January 1, 2002, has been publicly used since that time, and has been regularly maintained and repaired by the County for more than seven years prior to the Exemption. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that during its relevant period of existence, the width of 101st Avenue that actually has been maintained or repaired is substantially -- if not identically - - the same as the width of 101st Avenue after the road repairs under the Exemption were completed. The work performed under the Exemption did not realign or expand the number of traffic lanes of 101st Avenue. The repairs to 101st Avenue included work reasonably necessary to repair and stabilize the road using generally accepted roadway design standards. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that no excavated material related to the work under the Exemption was placed at or near Dr. Still’s property or, for that matter, anywhere along 101st Avenue. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the repairs to 101st Avenue did not adversely impound or obstruct existing water flow, cause adverse impacts to existing surface water storage and conveyance capabilities, or otherwise cause adverse water quantity or flooding impacts to receiving waters and adjacent lands. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the road repair work incorporated effective means of stormwater treatment, and did not cause or contribute to a violation of state water quality standards. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that turbidity, sedimentation, and erosion were controlled during and after construction, and continue to be controlled, to prevent violations of state water quality standards. Erosion and sediment control BMPs were installed and maintained in accordance with applicable guidelines and specifications. Evidence to the contrary was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Suwannee River Water Management District enter a final order: Approving the December 10, 2019, Environmental Resource Permit (ERP): Exemption, ERP-007-233697-2, determining that activities related to the repair of Southwest 101st Avenue in Bradford County, Florida, met the criteria to be an exempt activity pursuant to rule 62-330.051(4)(e); and Taking such action pursuant to section 120.595(1) as it deems appropriate. The undersigned retains jurisdiction to determine the award of costs and attorneys’ fees pursuant to section 120.595(1)(d), if the final order makes such an award and the case is remanded by the Suwannee River Water Management District to DOAH for that purpose. DONE AND ENTERED this 19th day of November, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 19th day of November, 2020. COPIES FURNISHED: George T. Reeves, Esquire Davis, Schnitker, Reeves and Browning, P.A. Post Office Drawer 652 Madison, Florida 32341 (eServed) Paul Edward Still 14167 Southwest 101st Avenue Starke, Florida 32091 (eServed) Frederick T. Reeves, Esquire Frederick T. Reeves, P.A. 5709 Tidalwave Drive New Port Richey, Florida 34562 (eServed) William Edward Sexton, County Attorney Bradford County, Florida 945 North Temple Avenue Post Office Drawer B Starke, Florida 32091 (eServed) Hugh L. Thomas, Executive Director Suwannee River Water Management District 9225 County Road 49 Live Oak, Florida 32060 (eServed)
Conclusions THE Respondent filed a Notice of Voluntary Withdrawal of Hearing Request with the Division of Administrative Hearings. The Division of Administrative Hearings issued an Order Closing File and Relinquishing Jurisdiction. BASED on the foregoing, it is ORDERED and ADJUDGED that Respondent refund, forthwith, the sum of $205,215.43, together with such statutory interest as is set forth in Section 409.913(25)(c), Florida Statutes. This amount due will be offset by any amount already received by the Agency in this matter. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ae of “fog , 2012, in Tallahassee, Florida. Coa Wf UL fea Mf, for. Agency for Health Care Administration 1 Filed May 16, 2012 2:09 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Daniel Lake, Esquire Agency for Health Care Administration (Interoffice Mail) Cynthia Mikos, Esquire Allen Dell, P.A. 202 South Rome Avenue, Suite 100 Tampa, Florida 33606 (U.S. Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Chief, Medicaid Program Integrity Finance and Accounting HQA Agency for Persons with Disabilities (Facility) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the /S_ day of Dé ys , 2012. a co oS \__ Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement based on their mutual interests. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this filed is CLOSED. DONE and ORDERED on this the Al day of Dofober , 2013, in Tallahassee, Florida. IZABETH DUDEK, SECRETARY Agenc¥ for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Filed October 21, 2013 4:07 PM Division of Administrative Hearings Copies furnished to: William M. Blocker II, Esq. Agency for Health Care Administration (Inter-office Mail) Oertel, Fernandez, Bryant & Atkinson, P.A. Attn: Segundo Fernandez 2060 Delta Way Tallahassee, Florida 32303 Shutts & Bowen, LLP. Attn: Joseph Goldstein 200 East Broward Boulevard Suite 2100 Fort Lauderdale, Florida 33301 Rutledge Ecenia, P.A. Attn: Stephen Ecenia Attn: J. Stephen Menton 119 South Monroe Street Suite 202 Tallahassee, Fl. 32303 Radey Law Firm Attn: Jeffrey Frehn Attn: Donna Blanton 301 S. Bronough Street Suite 200 Tallahassee, FI. 32303 John G. Van Laningham Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregeing document has been furnished to the above named addressees by U.S. Mail on this they day of , 2013. Richard Shoop, Esq. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, FL 32308-5403 (850) 412-3630
The Issue Whether subject signs violate state and federal laws and should be removed.
Findings Of Fact The following described signs are located in agriculture zones and violate set-back requirements, each being closer than 660 feet from the nearest edge of the road right of way. Copy on each sign advertises the Camp-A-Wyle Lake Resort. U.S. 19 5.29 miles South of Hernando/Citrus City Line U.S. 19 2.61 miles North of State Road 50 U.S. 19 6.04 miles South of Hernando/Citrus City-Line U.S. 19 8.83 miles South of Hernando/Citrus City Line Notice of violation regarding subject signs was properly sent by Complainant and received by Respondent. No application was made or permit for erecting subject signs issued and the signs have no permit tags placed on them.
The Issue The issues in this case are whether Respondent committed an unlawful employment practice in violation of section 70-53, Pinellas County Code, by terminating Petitioner's employment allegedly because of her disability; and, if so, what is the appropriate remedy.
Findings Of Fact Admitted Facts Per Joint Pre-hearing Stipulation Sure-Tek is an employer as defined by section 70-51, Pinellas County Code. Ms. Turner was employed by Sure-Tek on January 18, 2010. Her employment was terminated by Sure-Tek on February 22, 2010. Prior to her employment, Ms. Turner was diagnosed with diabetes insipidus. Ms. Turner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations. Lewis "Mitch" Currie is the owner of Sure-Tek, and he was Ms. Turner's direct supervisor. Mr. Currie made the decision to terminate Ms. Turner's employment. Additional Findings of Fact Based on the credibility and demeanor of the witnesses and the greater weight of the competent substantial evidence presented at the final hearing, the following additional facts are found. Diabetes Insipidus Ms. Turner developed diabetes insipidus four years ago as a result of brain surgery to remove a tumor on her pituitary gland. She described the condition as a very rare form of diabetes that is a sodium/electrolyte disorder, instead of the more common forms of diabetes that are insulin/blood sugar disorders. She testified that her understanding of her condition is that it is essentially permanent--the underlying cause of her condition will never go away, and she will eventually need brain surgery again. Ms. Turner's condition requires constant monitoring, but instead of measuring blood sugar via blood tests, Ms. Turner's condition involves monitoring and maintaining a balance of hydration, electrolytes, and output (urination), while taking prescription medication to protect against extreme imbalance that could result in her urinating herself to death. The line where the balance should be drawn at any given point is variable and difficult to predict, so the monitoring and adjustment process is a matter of trial and error, to some degree. The balance that Ms. Turner's condition requires is thrown off by temperature extremes, so she cannot work or spend much recreational time outside when it is hot or cold. She can work in an indoor office setting, provided that she takes extra steps to regulate the temperature, such as using space heaters to warm up a cool space. Ms. Turner must also be permitted to have ready access to plenty of drinking water at all times, and she has gotten used to bringing bottled water with her to ensure an appropriate supply. Her condition can cause her to urinate frequently, and so she also must have ready access to a restroom. Ms. Turner also testified that her condition requires her to maintain a strict diet, because many foods and drinks will throw off the balance she must maintain. For example, Ms. Turner must avoid sodium, butter and certain other fats, meats, and other ingredients. Since some of the ingredients she must avoid, such as sodium, are difficult to control and monitor when eating out, she does not often go out to eat in restaurants and no longer goes out to dinner with friends. Ms. Turner has gotten very sick when she has unknowingly ingested too much sodium or when the ingredients she must avoid have secretly been in her food. Ms. Turner has learned the hard way about some of the things she cannot tolerate. For example, she learned that she cannot drink alcohol when, after the onset of her diabetes insipidus, she collapsed after drinking a small amount of alcohol at a party and had to be hospitalized. By sticking to a careful regimen of monitoring and adjustment, by adhering to all of the hydration and dietary restrictions she has learned are necessary from her experience, limiting her social activities (rarely eating out, limiting outdoor activities), controlling the temperature of her settings and ensuring constant access to water and bathrooms, Ms. Turner has been able to deal with her condition. In a lay person's sense, Ms. Turner does not really consider herself to be disabled, although she tends to think in comparative terms, noting that there are persons with severe debilitating conditions that are much worse off than she is. Ms. Turner testified that her diabetes disorder also has impaired her immunity system, making her more prone to sickness. No medical testimony was offered to verify this opinion. Somewhat inconsistently, Ms. Turner later testified that when she got sick with a cold, which evolved into bronchitis, that episode of sickness was unrelated to her diabetes condition. Indeed, Ms. Turner's opinion that her sickness was not related to her diabetes condition was confirmed by her testimony that she has gotten colds that turned into bronchitis every winter for many years, pre-dating the onset of her diabetes insipidus. Employment at Sure-Tek Sure-Tek is in the business of powder coating, which is an anti-corrosive industrial coating applied to metal and other objects. The building in which Sure-Tek carries out its business has two main areas: administrative office space and warehouse space. The powder coating is done in the warehouse part of the building, in a room with two ovens that operate at 400+ degrees. The room with the ovens is very hot, often 120 degrees or more. Ms. Turner was hired as a bookkeeper/receptionist/ office assistant, beginning on January 18, 2010. She was the only administrative/office worker at Sure-Tek. The other approximately 10 employees worked in the warehouse, carrying out the powder-coating business. Mr. Currie, the owner/president, spent about half of his time in his office and the other half in the warehouse. Ms. Turner had an office with a door that she often kept closed because of her sensitivity to hot and cold temperatures; it was easier to regulate the temperature of her office space if the door was closed. Ms. Turner found her office to be very cold, so she kept two space heaters going. She brought her own space heater to use at the office to accommodate her need to modify the temperature of her space. Brandon Bean, another employee at Sure-Tek, did not like having to go into Ms. Turner's office, finding it unpleasantly warm--he described it as quite "toasty." When Ms. Turner was hired, Mr. Bean had been working at Sure-Tek for about five months. Mr. Bean had been in jail before he was hired by Sure-Tek, having served a sentence for a felony conviction related to firearms. During the time that Ms. Turner was an employee at Sure-Tek, Mr. Bean's position was referred to as floor supervisor or warehouse foreman. Mr. Bean testified that he was promoted to general manager one year ago, which would have been a few months after Ms. Turner was fired, while the Pinellas OHR was conducting its investigation of Ms. Turner's discrimination complaint. Ms. Turner was expected to work 40 hours per week, and she testified that she did so, not missing a day of work. No evidence was presented that Ms. Turner did not work the hours she was expected to work each day and week of her employment (with the exception of leaving sick two hours early on the last Friday of her employment, discussed below). She rarely took lunch. She was expected to be available during business hours to answer the phones and was expected to take a portable phone with her when she stepped away from her desk, even when she went to the bathroom. When she went to the bathroom with a portable phone, she was expected to answer the phone, even then, if a call came in. At her interview, Ms. Turner told Mr. Currie that she had substantial bookkeeping experience and knew how to use QuickBooks software. No credible evidence was presented to prove that her representations were not true. When Ms. Turner began working for Sure-Tek, she received no training or orientation from someone who knew the office systems, protocols, or electronic files. Mr. Currie told Ms. Turner verbally what her duties were and how things were done, but he did not actually train her. For him, it was good enough that she said she knew QuickBooks. Besides, as he admitted at the hearing, he really did not know the computer systems himself; he "doesn't use the computer much." Ms. Turner discovered that there were two QuickBook systems, which were password-protected. Ms. Turner said that it took two days for her to track down the passwords. Then, she had quite the time sorting out the accounts set up in the two different systems--she described the state of the computer accounting as "a mess" when she started. She asked Mr. Currie if she could merge the two systems, and he told her to go ahead. At the hearing, Mr. Currie acknowledged that there were two QuickBook systems, an older version and a new 2010 version. He testified that his only office help after getting the updated QuickBooks software consisted of a series of three different temporary employees sent over by a "temp" agency. He said that these temporary employees were awful; nonetheless, he tasked them with setting up the new system with information brought over from the old system. It should come as no surprise, then, that Ms. Turner found many problems and errors, such as entries of very recent information in the old system that should have been in the new system. Ms. Turner testified that she discovered quite a few late and unpaid bills when she started. She would bring these items to Mr. Currie's attention, and he would tell her whether the bills could be paid or not. Mr. Currie's permission was required before Ms. Turner could pay any bills, and sometimes Mr. Currie would refuse to authorize payment for bills that were due or past due. Mr. Currie confirmed this at hearing; he testified that he "absolutely" had to refuse permission to pay bills at times, because there was not always enough money to pay all of the bills. At other times, he would tell Ms. Turner to just pay part of a bill that was due. Mr. Currie testified that for the first two weeks of Ms. Turner's employment at Sure-Tek, she seemed to be on track and was trying very hard. Ms. Turner noted that Mr. Currie praised her work during those first two weeks, and he did not deny this. However, according to Mr. Currie, after about two weeks, Ms. Turner's performance went "downhill." Mr. Currie did not present any credible evidence to prove this demarcation point. However, the evidence did establish that the two-week point was significant for a different reason. Mr. Currie had lunch with Ms. Turner after her first two weeks. In their lunchtime conversation, Mr. Currie told Ms. Turner that his wife suffered from a thyroid problem, which he said sometimes made her off-balance. Ms. Turner responded by telling Mr. Currie that she had diabetes insipidus. Mr. Currie had no apparent immediate reaction to this disclosure. However, at some point thereafter, Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes.1/ When Ms. Turner had a cold throughout the week of February 15, 2010, the two had an awkward encounter on Friday afternoon, February 19, 2010. As Ms. Turner described it, by mid-afternoon on Friday, after sticking it out at work all week while not feeling well, she asked Mr. Currie if she could go home two hours early, because she had finished her Friday task of getting the information in to the payroll service and thought it would be all right if she left for the day. Mr. Currie got very angry and said that her diabetes was always making her sick. She tried to tell him that she had a cold and was on antibiotics (to stop the apparent evolution of her cold to bronchitis), and it was unrelated to her diabetes. But Mr. Currie just waved his hands and yelled at her to "just go!" She thought he meant that she should go home as she had asked, although she knew he was not happy about it. So she left. Mr. Currie told a very different version of Friday, February 19, 2010. Mr. Currie denied making any statements about Ms. Turner's diabetes, then or ever. Mr. Currie also denied having any conversation with Ms. Turner that afternoon about whether Ms. Turner could go home two hours early because she had a cold. However, Mr. Currie testified that he noticed that Ms. Turner was sub-par that day. As Mr. Currie put it, that day Ms. Turner "seemed a little sicker than she appeared to be normally." Mr. Currie then testified that Mr. Bean was looking for Ms. Turner in the middle of the afternoon that Friday, February 19, 2010. He asked Mr. Currie where she was, and Mr. Currie said he did not know. Then, according to Mr. Currie, after they spent about 45 minutes looking for Ms. Turner, Mr. Currie decided that Ms. Turner must have quit, leaving without telling anyone, never to return. At that point, Mr. Currie instructed Mr. Bean to place an ad on Craigslist for a replacement for Ms. Turner. Mr. Currie's version of the events on Friday, February 19, 2010, is not credible, particularly when coupled with Mr. Currie's inconsistent version of the events on Monday, February 22, 2010; Ms. Turner's version is accepted as the more credible account of events. On Monday, February 22, 2010, Ms. Turner went to work that morning, only to find a number of telephone messages from applicants for the Craigslist ad and resumes submitted by individuals requesting an interview for the bookkeeper position. By mid-morning, Mr. Currie called Ms. Turner into his office. According to Ms. Turner, Mr. Currie said that it was not working out with her diabetes. When Ms. Turner tried again to tell him that her two-hour break Friday afternoon was because of a cold, and not diabetes, Mr. Currie then added that that was not the only reason he was letting her go--that she had bankrupted his company.2/ Then, according to Ms. Turner, Mr. Currie asked her to stay to train her replacement, which she refused to do. Mr. Currie does not deny that he told Ms. Turner she was terminated, but he denies any reference to her diabetes, claiming it was all because of her performance. Mr. Currie did not attempt to reconcile this version in which he admittedly intended to fire Ms. Turner, with his inconsistent description of the previous Friday, when he claimed that the only reason he placed the Craigslist ad was because he believed that Ms. Turner had voluntarily quit, and he had no choice but to start looking for a replacement. In an effort to show that he was thoughtful and accommodating of Ms. Turner's health condition and needs, Mr. Currie testified that a few days before Ms. Turner was fired, she had told him that she would be needing another surgery. His response was that he would hire a temporary employee to cover for her so she could have the time off for her surgery. But this testimony tends to underscore that as of just a few days before Ms. Turner was fired, Mr. Currie gave no signs to Ms. Turner that there were any performance-related issues that would put her job in jeopardy. Twisting back toward the different version of events that suggested there were mounting problems with Ms. Turner's performance, Mr. Currie claimed to have talked with Ms. Turner on several different occasions throughout her employment about her performance problems. As noted above, Ms. Turner testified, credibly, that for the first few weeks, Mr. Currie said she was doing a good job. After that, Ms. Turner acknowledged a single comment by Mr. Currie that she did not know how to run reports right. Ms. Turner also acknowledged that Mr. Bean called one meeting with Mr. Currie and Ms. Turner to complain that Ms. Turner was unfriendly to him and did not respond quickly enough to a request he made for information. Ms. Turner explained her run-in with Mr. Bean, stating that she was on the phone when he walked into her office and started talking to her as if she was not on the phone. She said that he got quite huffy when she asked him to wait a minute while she finished the call. Mr. Currie claimed that after the first few weeks, he started noticing that bills were going unpaid, and he talked to Ms. Turner about it. Ms. Turner's version, as noted above, was that there were overdue bills when she started, and she called them to Mr. Currie's attention; however, as Mr. Currie admitted, he sometimes refused permission to pay those bills and sometimes told her to just pay part of the bills, because he did not have enough money. No credible evidence was presented that Ms. Turner was to blame for bills going unpaid, or only partially paid, during her time of employment. Instead, the evidence showed that before, during, and after Ms. Turner's employment, bills sometimes went unpaid or only partially paid, admittedly, at Mr. Currie's direction. While Mr. Currie denied that it made a difference to him when Ms. Turner told him about her diabetes at that two-week lunch, the more credible evidence is that Mr. Currie's attitude towards Ms. Turner as an employee changed at that two-week mark. The more credible evidence established that Mr. Currie had a knee-jerk reaction upon learning that Ms. Turner had "diabetes" to jump to the conclusion that she had a disability that rendered her substantially and significantly impaired in the major life activity of working. He decided, without any real basis, that she was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied. The credible evidence establishes that Mr. Currie fired Ms. Turner because of his perception of her disability. Mr. Currie's testimony included the occasional revealing slips that were much more telling than his steadfast (but not credible) denial of any discrimination. As noted, Mr. Currie testified that he found Ms. Turner to be a good employee who was trying very hard for the first two weeks, but that her work slipped and went downhill after the first two weeks. Yet he presented no evidence to prove what he observed that showed such a downhill slip in her performance after two weeks. Instead, the evidence and testimony, considering the credibility and demeanor of the witnesses, painted the picture that it was Ms. Turner's disclosure of having diabetes, and that alone, caused Ms. Turner's downhill plummet in Mr. Currie's eyes. That Mr. Currie perceived Petitioner to be disabled and perceived Petitioner's disability to substantially affect her ability to do her job, was evident from Mr. Currie's slip that on her last Friday of work, Petitioner seemed "sub-par," which he characterized as "a little sicker than she appeared to be normally." Thus, Mr. Currie perceived Petitioner as "normally" sick. That perception came despite the unrebutted testimony by Petitioner that she did not miss any work time based on illness or complication from her diabetes until she asked to leave two hours early on Friday, February 19, 2010. Ms. Turner's testimony regarding Mr. Currie's discriminatory comments was corroborated by the testimony of Tanya Rodriguez, who was hired in response to the Craigslist ad to replace Ms. Turner. Ms. Rodriguez did not know Ms. Turner until she met her, when Ms. Turner came in to Sure-Tek to pick up her last paycheck after she had been fired. Ms. Rodriguez provided information to the Pinellas OHR in its investigation of Ms. Turner's complaint when Ms. Rodriguez was still employed by SureTek. Ms. Rodriguez was then fired, allegedly for performance problems.3/ Ms. Rodriguez convincingly testified at the final hearing that when she was interviewed by Mr. Currie to replace Ms. Turner, Mr. Currie asked her, point-blank, whether she had diabetes. He told her that the last person he hired with diabetes was a good for nothing S.O.B; that he never would have hired her if he knew she had diabetes, because she was always sick; and that he would never hire another person with diabetes. Ms. Rodriguez told Mr. Currie that she did not have diabetes, even though she actually was diabetic.4/ After Mr. Currie asked his question about diabetes, he proceeded to ask Ms. Rodriguez whether she had thyroid problems (like his wife, whom he told Ms. Turner was sometimes off-balance as a result). Ms. Rodriguez also confirmed Ms. Turner's testimony that there were deep-seated problems remaining in the dual QuickBook systems. Although Respondent attempted to characterize this testimony as evidence of Ms. Turner's poor performance, Ms. Rodriguez made it very clear that the problems imbedded in the dual systems were from a much longer time span--up to one year--and could not have been the result of errors made in the one month preceding Ms. Rodriguez' employment at Sure-Tek. Instead, Ms. Rodriguez saw signs of efforts to merge the two systems, but noted that there would not have been enough time in one month to completely merge the systems and fix all of the imbedded problems. She testified that she also tried her best to make progress, but she was only at Sure-Tek for a few short weeks. Ms. Rodriguez' testimony was credible and is accepted.5/ Her testimony strongly corroborates Ms. Turner's testimony of Mr. Currie's direct discriminatory statements, including the first words out of his mouth when he fired her--that it was not going to work out, with her diabetes. At hearing, Respondent presented evidence offered in an attempt to demonstrate that Ms. Turner's job performance was not good and was the legitimate reason for her termination. Mr. Currie testified that a Progress Energy bill due on February 18, 2010, went unpaid. Mr. Currie blamed this on Ms. Turner forgetting to pay the bill, but that was not established. Ms. Turner and her successor, Ms. Rodriguez, both testified that as bookkeepers for Respondent, they did not have the authority to pay bills. Instead, they were required to review the bills with Mr. Currie, and each week he would tell them which bills could be paid, which bills should be partially paid, and which bills should be ignored. Mr. Currie corroborated this testimony, admitting that he "absolutely" had to refuse permission to pay bills sometimes. The short billing history Respondent put in evidence for Progress Energy showed, for example, that the month's charges due on June 18, 2009, went unpaid until the following month and that was well before Petitioner began her employment. Regardless of whether the Progress Energy bill due on February 18, 2010, was unpaid because of Ms. Turner's fault or Mr. Currie's instruction, the notification of this unpaid bill was first mailed out to Mr. Currie on Thursday, February 18, 2010. Thus, this could not have been an example of one of the bills allegedly going unpaid that Mr. Currie claimed to have begun noticing after Ms. Turner had been working at Sure-Tek for two weeks. Indeed, there is no evidence that Mr. Currie was even aware of this late notice, mailed on Thursday, by the next afternoon when he had an ad placed for Ms. Turner's replacement or by the following Monday morning, when he fired Ms. Turner. Mr. Currie also testified that Ms. Turner was to blame for an increase in his Progress Energy utility deposit from $800 to $2,500.00, but no evidence was presented to prove that there was an increase in SureTek's required utility deposit at all, or, if so, when any such increase occurred. To the contrary, the Progress Energy statement for February 2010, covering the billing period of January 27, 2010, through February 24, 2010 (very close to the time span of Ms. Turner's employment), shows that the deposit amount already being held for that account at that time was $2,680. Further, the Progress Energy billing history summary shows that the prior month's bill, due on January 21, 2010, had been paid. Thus, the evidence refutes Mr. Currie's suggestion that there was an increase in the deposit requirement because of Ms. Turner's failure to pay the bills. Instead, it appears that if the deposit requirement had been increased, the increase occurred before January 2010, based on billing history that predated Ms. Turner's employment. A similar story was told with respect to the City of Pinellas Park water bills. Mr. Currie blamed Ms. Turner for not paying a bill from January 15, 2010, even though that bill was transmitted online before Ms. Turner was hired. Both before and after Ms. Turner was employed, there was a billing history for the water bills that showed occasional missed payments and occasional partial payments of the total amount due, as well as the imposition of a penalty charge for late payment. The January 15, 2010, bill that was not paid when due on February 10, 2010, resulted in a $34.10 penalty charge, which may have been Ms. Turner's fault. However, given Mr. Currie's admission that he controlled payment of bills and sometimes refused permission to pay bills when due, the evidence is insufficient to show that Ms. Turner was to blame for the bill not being paid while she was employed at Sure-Tek or for the late charge. Mr. Currie also presented evidence regarding PESCO gas bills. A summary of PESCO charges and payments was presented with a January charge highlighted. Next to the January charge was a handwritten note, "DID NOT PAY PESCO BILL." The only problem with this evidence is that the summary is for charges and payments in 2009, not 2010. Thus, whoever did not pay the PESCO bill in January 2009, it could not have been Ms. Turner. Mr. Currie also presented a separate PESCO invoice dated March 4, 2010, which showed that the balance due as of the prior month's bill, February 4, 2010, was $4,609.13. This balance was reduced by a $1,791.73 payment made February 10, 2010, presumably by Ms. Turner during her time of employment. Mr. Currie admitted at the final hearing that PESCO accepted partial payments at that time, and he admitted that he probably instructed Ms. Turner to pay only part of the February bill. It was not shown that there were any billing or payment problems with this account or that Ms. Turner's performance can be faulted at all. Next came the TECO People's Gas bill. On a statement dated February 12, 2010, a "previous balance" of $1,589.88 was carried forward from the prior month's bill. Sometime between the prior statement issued in mid-January 2010, and the February 12, 2010, statement, a partial payment was made and credited in the amount of $497.68, leaving $1,092.20 still due from the January bill. Because the remaining balance was considered "past due" on February 7, 2010, a late payment fee of $16.38 was added to the February statement. Mr. Currie acknowledged that the January 2010 bill was partially paid while Ms. Turner was employed at Sure-Tek. Once again, Mr. Currie admitted that it was "entirely possible" that he was the one who instructed Ms. Turner to pay what Respondent could afford to pay--the partial payment of $497.68--because he did not have the money to pay the entire bill. Mr. Currie's own testimony and the bill itself refute his claim that Ms. Turner overlooked or forgot to pay the January bill. In addition, Mr. Currie's testimony corroborated the testimony of Ms. Turner and Ms. Rodriguez regarding the tight control Mr. Currie kept on which bills were paid or partially paid. This evidence does not establish that Ms. Turner's performance can be faulted for the partial payment of the January TECO People's Gas bill or the late fee charged on the remainder that was not paid when due. TECO People's Gas also sent a "final notice" on February 11, 2010, informing Sure-Tek that it had to pay the remaining past due balance of $1,092.20 right away, or else its service would be terminated on February 19, 2010. A copy of the final notice in evidence has handwriting on it, indicating "pay" in one handwriting style and "paid" in a different handwriting style. Mr. Currie did not testify that his TECO People's Gas service was terminated. Thus, the reasonable inference is that Mr. Currie authorized Ms. Turner to pay the rest of the January balance upon receipt of the final notice, and she did so before February 19, 2010. Mr. Currie's final piece of documentary evidence to support his claim of mounting performance problems was a notice from the Florida Department of State, Division of Corporations, dated February 17, 2010 (the Wednesday of Ms. Turner's last week of employment). This notice informed Sure-Tek that its corporate annual report was due and should be filed with the filing fee by May 1, 2010, to avoid a late fee. A second notice dated June 16, 2010, imposed the late fee and notified Sure-Tek that the annual report, filing fee, and late fee had to be submitted by September 17, 2010, to avoid administrative dissolution. Despite the fact that Ms. Turner was fired a few days after the first notice and a late fee could have been avoided if the report and filing fee were submitted at any time in the approximately 70 days remaining after Ms. Turner was fired, Mr. Currie blamed the failure to meet the May 1, 2010, deadline on Ms. Turner. That attempted blame is not warranted and, instead, tends to suggest that Mr. Currie was looking to find things to blame on Ms. Turner after she was fired. Mr. Currie testified that he believed Ms. Turner did not know how to use QuickBooks, and, as a result, did not follow his instructions to enter bills into QuickBooks as soon as they were received. However, Mr. Currie offered no credible, competent evidence of this. Mr. Currie admitted that he had no personal knowledge regarding what was or was not entered into QuickBooks by Ms. Turner or how Ms. Turner performed using QuickBooks, and no other evidence was offered to prove Mr. Currie's unsubstantiated claim. Mr. Bean participated in the Pinellas OHR investigation and testified at the final hearing in support of Mr. Currie's position that Ms. Turner was fired because of her performance problems. Mr. Bean testified that Ms. Turner was fired because of a "lack of ability to do the job," and he referred to her not paying bills. Mr. Bean's testimony lacked credibility and probative value. He admitted that he had no personal knowledge of unpaid bills, no personal knowledge of Ms. Turner's interaction with vendors, and no personal knowledge of her QuickBooks work. Mr. Bean provided no competent, credible evidence of any problems with Ms. Turner's performance. The only testimony he provided that was based on personal knowledge was that he found her to be "unfriendly" to him. While Ms. Turner was employed at SureTek, Mr. Bean was not her supervisor; at the time, he supervised only the warehouse employees. Mr. Bean testified that he was promoted to general manager in early July 2010 (one year before the final hearing), having "worked [his] way up." This was a few months after Ms. Turner was fired, after Ms. Rodriguez was fired, and after Mr. Bean had provided support to Mr. Currie's position in the Pinellas OHR investigation. The credible evidence fails to support Mr. Currie's suggestion that Ms. Turner was not performing acceptably in her brief tenure and was fired for that legitimate reason. Instead, it appears that Mr. Currie went on an after-the-fact hunt for things he could blame on Ms. Turner that could not reasonably be blamed on her, nor were they shown to be reasons why Mr. Currie made the decision on February 19, 2011, to terminate Ms. Turner and advertise for her replacement. Indeed, Mr. Currie's own testimony shows the inconsistencies in his attempt to develop a legitimate rationale for letting Ms. Turner go. When Mr. Currie was explaining his recollection of the events of February 19, 2011, he testified that after just 45 minutes of looking for Ms. Turner, who he described as looking sub-par and sicker than she normally looked that day, he decided that she must have quit, and he instructed Mr. Bean to place an ad on Craigslist because Ms. Turner had apparently decided to quit. That is quite a bit different than coming to the studied view over a multi-week period of time and following several counseling sessions that Ms. Turner's job performance was unacceptable and that she should be fired for poor performance. Instead, the suggestion was that Mr. Currie would have been happy to keep Ms. Turner--even willing to get a temporary employee to accommodate Ms. Turner's need for another surgery in the future--but she was the one who chose to leave. Mr. Currie never attempted to reconcile these two very clearly different explanations of how Ms. Turner's employment at Sure-Tek ended. These inconsistencies undermine the credibility of his attempt to legitimize her termination. Appropriate Remedy Petitioner testified that she is seeking back pay only, through the date of the final hearing, as damages. Petitioner quantified her back pay damages as 71.5 weeks of unemployment since her termination. She testified that her income at Sure-Tek was $540.00 per week ($13.50 per hour, times 40 hours per week). This evidence was not challenged by Respondent. Therefore, the total amount of back pay damages claimed before offsetting reductions is $38,610.00 Petitioner testified to her substantial efforts to obtain a job after she was fired by Respondent, and her testimony was corroborated by a tremendous amount of electronic mail inquiries and applications she submitted to follow up on job postings on Craigslist and other online job listings. Petitioner was hired shortly after she was let go by Mr. Currie at a company called Clear Tech, Inc. That job did not last long, however, because Ms. Turner was hired to work for the part of the company that was in the business of new pool construction and that part of the business was shut down soon after she started, due to the economic slow-down. Petitioner proved the amount of wages earned at Clear Tech: $1,632.00. In addition, Petitioner proved that she earned an additional $1,612.00 in unemployment compensation after she was fired from Sure-Tek. These two categories reduce the total amount of damages sought to $35,366.00. Petitioner testified that since she stopped working for Clear Tech, she has not earned wages. However, she testified that she has been helping out at Apple Homes, the company owned by her grandfather and father and has worked about ten hours per week. She is not on the payroll, because business is not good enough for her to be paid. However, both her grandfather and father help her out financially, helping to pay her rent and her bills. Although Ms. Turner testified that she plans to eventually pay back her father and grandfather for their financial help, she did not produce any evidence to substantiate that claim, such as an accounting maintained by her to tally the amounts of their assistance so she would know how much to repay them. Thus, it is reasonable to assume that her ten hours per week of work to "help" the company is being compensated by this indirect "help" to assist with her rent and bills. The undersigned finds that Petitioner has mitigated her damages to the extent of having similar work for which she is compensated for ten hours per week. Petitioner testified that she began working at Clear Tech in March 2010 and that she worked there for approximately 30 days. Therefore, the undersigned will assume that Petitioner worked at Clear Tech for the month of March 2010, and, thereafter, she worked at Apple Homes for ten hours a week. That equates to approximately 66 weeks, or 660 hours. In the absence of any other evidence showing how much Petitioner received as indirect compensation, it is reasonable to assume that her compensation would have approximated the hourly rate she earned from Respondent. Therefore, the undersigned will deduct $8,910 from the total back pay damages, representing estimated compensation of the value of her services of ten hours per week at Apple Homes for 66 weeks. The undersigned finds that Petitioner has incurred actual damages due to lost wages from her date of termination by Respondent through the date of the final hearing, reduced/offset by the items described above, of $26,456.00. Petitioner established her reasonable efforts to mitigate her damages, and she, in fact, mitigated her actual damages which have been reduced/offset as described above by a total of $12,154.00. Petitioner has hired an attorney who has represented her at the final hearing, in pre-hearing preparation, and in post-hearing proceedings. Petitioner has also incurred costs in connection with this litigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Sure-Tek Powker Coating, Inc., violated section 70-53, Pinellas County Code; Ordering Respondent to pay Petitioner, Rebecca Turner, the sum of $26,456.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Turner reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 22nd day of September, 2011.
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED on this the Fey of feu 2013, in Tallahassee, Florida. Agency for HealthCare Administration Agency for Health Care Administration v. James R. Hampton Final Order ~ Page 1 of 3 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Rafael A. Gaitan, Esquire The Health and Business Law Group 1110 Brickell Avenue, Suite 407 Miami, Florida 33131-3135 Telephone: 305.443.8900 Facsimile: 786.264.5570 Email: rgaitan@healthandbizlaw.com (Via Facsimile and Email) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (nteroffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) ; Florida Department of Health Medical License #$A6172 (Via Email Only) Agency for Health Care Administration v. James R. Hampton Final Order — Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served to the above named addresses by U.S. Mail and interoffice mail this S4 day of Zp] ~ 2013. See Richard Shoop, Agency Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, Florida 32308-5403 (850) 412-3671 Agency for Health Care Administration v. James R. Hampton Final Order — Page 3 of 3
Findings Of Fact This cause comes on for consideration based upon the First Amended Petition by Capeletti Brothers, Inc., to determine the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede, and is presented pursuant to Section 120.56, Florida Statutes. The First Amended Petition also makes allegations concerning the validity of an alleged rule purportedly found in the Notice of Intent to Deny the permit dated October 16, 1978; however, this statement is considered and ruled upon in the companion case, D.O.A.H. Case No. 79-1440R. The reason for this procedural disposition is due to the fact that the original Petition only contains allegations concerning the Letter of Intent to Deny of March 26, 1979, and any attempt on the part of the Petitioner to amend the Petition to include additional rules or purported rules that were not the subject of the original Petition was not deemed appropriate and, consequently, the attack on the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede, was allowed to go forward only through an independent case consideration which is the case D.O.A.H. 79-1602RX. This approach was adopted to accommodate the notice requirements of Section 120.56, Florida Statutes. In summary, the document entitled "First Amended Petition" has been divided into two cases, D.O.A.H. Case No. 79-1440R dealing with the Letter of Intent to Deny of March 26, 1979, and D.O.A.H. Case No. 79-1602RX dealing with the challenge to Rules 17-4.02 and 17- 4.28, Florida Administrative Code. (The evidential facts and certain related legal conclusions involved in considering the case sub judice, have been the subject of an Order of the undersigned in D.O.A.H. Case 79-891 involving the same parties to this cause, and the evidential fact determinations and legal conclusions in that Order dated December 7, 1979, are hereby incorporated into this Order by reference and through the act of attaching a copy of the prior Order are made a part of the present Order.)
The Issue Should the Department of Transportation (Department) grant Petitioner Ronnie Forrest's connection application number C-13-021-93 for a permit to construct a driveway and acceleration/deceleration lanes, to provide access to U S 19 (S R 45 and 55) for Petitioner's proposed development of parcel identified in plans as Site B? Should the Department grant Petitioner's connection application number C-13.022-93 for a permit to construct two driveways to provide separate ingress and egress to U S 19 (S R 45 and 55) and U S 41 (S R 55) for Petitioner's proposed development of parcel identified in the plans as Site A?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. Petitioner proposes to develop two parcels of land located in the functional area of the interchange of S R 45 and 55 (U S 19/41/301) in Manatee County, Florida. The parcels of land are designated on the site plans as Site A and Site B. The functional area of the interchange is the area within which a driver is expected to react to and make decisions concerning traffic. Site A comprises approximately seven acres. Petitioner proposes to construct a four thousand square foot convenience store, restaurant with gas pumps, truck diesel pumps, a car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-022-93 seeks authorization from the Department to construct two driveways for Site A which are to serve as separate ingress and egress points for vehicles entering and leaving Petitioner's proposed development. The ingress to Site A is proposed to be located on the east side of the parcel where northbound U S 19 diverges from northbound U S 41. The egress from Site A is proposed to be located on the west side of the parcel where southbound U S 19 and U S 41 merge. Site B comprises approximately four acres. Petitioner proposes to construct a six thousand square foot convenience store, restaurant, gas station, truck fuel pumps, car wash and accompanying parking for cars and trucks. Petitioner's Connection Application for permit number C-13-021-93 seeks authorization from the Department to construct one driveway and acceleration/deceleration lanes for ingress/egress for Site B. The proposed driveway location is at southbound U S 19 approximately across from 43rd Street Boulevard, West. There is at least one motel within close proximity of the proposed developments for Site A and B which presently offers room accommodations and parking for truckers. The proposed developments for Site A and B are neither as large as, nor offer as many amenities as, the traditional truck stop. However, the proposed developments for Sites A and B provide amenities such as restaurants, truck diesel fueling and truck parking areas. Therefore, due to the available amenities, the traffic composition - which includes large truck traffic - on U S 19, 41 and 301 and the motel accommodations, large trucks will be attracted to, and will use, the facilities proposed for Sites A and B. The proposed location of Site A's ingress or entrance driveway is limited by: (a) the existence of a limited access right of way line south of the existing driveway; (b) the existence of separate property to the north; and (c) grade separation of approximately 20 feet which occurs to the north at the departure of U S 41 into U S 19 overpass. The proposed location of Site A's egress or exiting driveway is limited by: (a) the existence of limited access right of way line approximately 30 feet to the south; (b) wetlands encroachment to the north; and (c) less available sight distance further north of the proposed egress location. The reason for less available sight distance at this location is due to: (a) the curvature of Site A; (a) the speed limit; and (c) the merger of U S 41 and U S 19 southbound traffic. Given the current configuration and traffic geometry, the proposed ingress and egress to parcel A are located in the most desirable positions possible from a traffic operational standpoint. The proposed location of Site B's ingress/egress is a driveway approximately across from 43rd Street Boulevard, West, on southbound U S 19 before it merges with southbound U S 41. A left in, left out driveway is proposed at this location. The operation of the two sites as proposed, individually or combined, will result in the generation of increased automobile traffic and large heavy truck traffic. The increased automobile and large heavy truck traffic entering and exiting the sites will create traffic hazards within the functional area of the interchange. Through traffic in the travel lanes within the functional area of the interchange travels at speeds of 55 to 60 miles per hour. Automobile and truck traffic accelerating and decelerating to enter or exit the sites will create significant speed differentials within the functional area of the interchange. For example, large heavy trucks will not have sufficient acceleration lane distance as they exit Site A or Site B to achieve the same speed as the through traffic which will create high speed differentials within the functional area of the interchange. The speed differentials in the functional area of the interchange will increase the accident rate within the functional area of the interchange, particularly truck/through traffic accidents. Traffic will be required to enter and exit the sites at points along the roadways within the functional area of the interchange where traffic is already required to execute a significant amount of weaving. As proposed, the sites will increase the area and number of conflicts within the functional area of the interchange. This in turn, will increase traffic weaving. Increase in the conflict points within the functional area of the interchange degrade the safe operation of the interchange. The sites as proposed, will increase U-turn volume at the median opening south of Site A. Large heavy trucks attempting this U-turn maneuver will encroach into the northbound travel lanes of U S 41. Additionally, since this U-turn maneuver requires a significant gap in through traffic, trucks will delay btheir U-turn maneuver causing queuing in the southbound left turn lane south of Site A. This U-turn maneuver will significantly reduce the available weave/merge/acceleration/deceleration distance between Site A and the U-turn location increasing the potential for truck/through traffic accidents. Operation of Site B as proposed has the potential to increase U-turns at the first median opening north of Site B on northbound US 19. Since the median width at this location is insufficient to accommodate large trucks, queuing will occur in the left turn lane at this location and present a potential safety and operational problem on the roadway. Sight distance at the Site A proposed egress is insufficient. Without sufficient sight distance, a driver's expectancy on the roadway is adversely affected in that there is insufficient time for the driver to react to another driver's intentions. The existing geometry of the interchange, the existing traffic flow, traffic volume and vehicle classifications on the roadways comprising the interchange, require certain levels of driver expectancy regarding operation of the functional area of the interchange. Since the safety hazards and operational problems described above occur within the functional area of the interchange, driver expectancy will be violated in the interchange by operation of the sites as proposed, adversely impacting the safety and operational characteristics of the roadways that comprise the interchange. The access connections for the sites as proposed would jeopardize the safety of the public, and would have a negative impact upon the operational characteristics of the highways comprising this interchange. There was insufficient evidence to show that there were other reasonable access connections available for the sites as proposed that would not jeopardize the safety of the public or would not have a negative impact upon the operational characteristics of the highways comprising this interchange.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner's Connection Application for permit numbers C-13-021-93 and C-13-022- 93. RECOMMENDED this 16th day of August, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 16th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4356 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 1 are adopted in substance as modified in Findings of Fact 1 through 25. Department's Proposed Findings of Fact. 1. Proposed finding of fact 1 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. COPIES FURNISHED: Charles F. Johnson, Esquire Blalock, Landers, Walters, and Vogler, P.A. Post Office Box 469 Bradenton, Florida 34206 Francine M. Ffolkes, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement based on their mutual interests. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this filed is CLOSED. DONE and ORDERED on this the Al day of Dofober , 2013, in Tallahassee, Florida. IZABETH DUDEK, SECRETARY Agenc¥ for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Filed October 21, 2013 4:09 PM Division of Administrative Hearings Copies furnished to: William M. Blocker II, Esq. Agency for Health Care Administration (Inter-office Mail) Oertel, Fernandez, Bryant & Atkinson, P.A. Attn: Segundo Fernandez 2060 Delta Way Tallahassee, Florida 32303 Shutts & Bowen, LLP. Attn: Joseph Goldstein 200 East Broward Boulevard Suite 2100 Fort Lauderdale, Florida 33301 Rutledge Ecenia, P.A. Attn: Stephen Ecenia Attn: J. Stephen Menton 119 South Monroe Street Suite 202 Tallahassee, Fl. 32303 Radey Law Firm Attn: Jeffrey Frehn Attn: Donna Blanton 301 S. Bronough Street Suite 200 Tallahassee, FI. 32303 John G. Van Laningham Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregeing document has been furnished to the above named addressees by U.S. Mail on this they day of , 2013. Richard Shoop, Esq. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, FL 32308-5403 (850) 412-3630
