The Issue Whether Petitioner committed the violations alleged in the citations he received on February 6, 1997. If so, what amount, if any, should he be fined.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: At all times material to the instant case, Petitioner owned and operated two apartment buildings located (adjacent to each other) at 732 and 740 Joe Louis Avenue in Pahokee, Florida (hereinafter referred to as the 732 Apartments and the 740 Apartments, respectively). Each building contained ten apartments used to house migrant farmworkers and members of their families, including their children. Among Petitioner's tenants was Speedy Martin. Petitioner paid Martin to help him maintain the buildings and grounds. Michael Menor is a Sanitation and Safety Specialist with the Department. He is assigned to the Department's Belle Glade office. In his capacity as a Sanitation and Safety Specialist, he inspects migrant farmworker housing to ascertain whether there is compliance with applicable statutory and rule requirements. Menor conducted inspections of the 732 and 740 Apartments on January 14, 1997. The inspections revealed the existence of violations at both locations. Following his inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on January 28, 1997. Before leaving, he handed these inspection reports to one of Petitioner's tenants, Marlo Camble. Approximately a week later, Camble provided the reports to Speedy Martin, who, in turn, notified Petitioner of the contents of the reports. The inspection report describing the condition of the 732 Apartments and grounds at the time of the January 14, 1997, inspection contained the following "comments and instructions": Repair cracks in building, south side. Replace 11 bathroom screens missing from building. Broken window [in] Apt. # 5 and two broken windows [in] Apt. 4. Repair or replace covers for water meters. Clean out garbage, litter and debris from east side of b[ui]ld[ing]. Replace missing screens [in] Apt[s]. #1 [and] 2. Provide or repair heat [in] Apt. #2. Exposed wires [hanging from two] public lighting . . . fixtures [on] west side of b[ui]lding. Exposed wires in meter room. Empty out storage area and repair door under stairs. Repair wall on side of storage area. Repair public lighting on 2nd floor. Repair or replace stove [in] Apt. #9. Repair or replace stove [in] Apt. #2. Note: Smoke detectors missing [from] Apt. #8. Fire extinguisher missing [from] Apt. #2. All fire extinguishers require reinspection and retag. The inspection report describing the condition of the 740 Apartments and grounds at the time of the January 14, 1997, inspection contained the following "comments and instructions": Replace missing screens in Apt[s]. #4 and #5. Repair leak on overhang, [in] front of Apt[s]. #4 and #5. Clean out garbage, litter and debris from east side of building. Repair heater [in] Apt. #4. Repair broken windows [in] Apt. #4. (2 windows broken). Remove or repair screen door [on] Apt. #3. Repair public lighting. Repair screen [in] Apt. #1. Exposed electrical wires [in] front of Apt. #1. Repair door frame and screen in meter room. Clean room. Provide cover for electrical wires in meter room. Repair overhang [on] corner of b[ui]ld[ing's] west side. Remove wooden poles [on] south side of building. Repair broken window [in] Apt. #3 [on] south side of building. Repair wall [on] south side of building. Provide covers for water meters. Replace 2 missing bathroom screens [on] south side of building. Repair public lighting [on] 2nd floor. Replace missing screen [in] Apt. #7. Repair 2 broken windows [in] Apt. #6. Exposed wire [on] west side of Apt. #6. Repair storage door under stairs and clean storage room. Note: All fire extinguishers require retag and reinspection. Replace fire extinguisher and smoke detector [in] Apt. #2. Menor returned to the 732 and 740 Apartments on January 31, 1997, to conduct follow-up inspections.1 The follow- up inspections revealed that, although Petitioner had remedied some of the problems that Menor had discovered during his January 14, 1997, inspections (and had noted in his reports of those inspections), most of the violations found during these earlier inspections had not been corrected. Following his January 31, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on February 4, 1997. Menor, on February 3, 1997, "faxed" Petitioner copies of the inspection reports. He also spoke with Petitioner and advised him of the contents of the reports. The inspection report describing the condition of the 732 Apartments and grounds at the time of the January 31, 1997, inspection contained the following "comments and instructions": Repair cracks in building, south side. Replace 11 bathroom screens missing from building. Broken window [in] Apt. #5 and two broken windows [in] Apt. #4. Repair or replace covers for water meters. Clean out garbage, litter and debris [from] east side of building. Replace missing screens [in] Apt[s]. #1 [and] 2. Provide or repair heat [in] Apt. #2. Repair door to storage area under stairs. Repair or replace stove [in] Apt. #9. Repair or replace stove [in] Apt. #2. Provide effective extermination of rodents. The inspection report describing the condition of the 740 Apartments and grounds at the time of the January 31, 1997, inspection contained the following "comments and instructions": Replace missing screens in Apt[s]. #4 [and] #5. Repair leak on overhang, [in] front of Apt[s]. #4 [and] #5. Clean out garbage, litter and debris from east side of b[ui]ld[ing]. Repair 2 heaters [in] Apt. #4. Repair overhang [on] corner of building['s] west side. Repair broken window [in] Apt. #3 [on] south side of building. Repair wall [on] south side of building. Provide covers for water meters. Replace 2 missing bathroom screens [on] south side of b[ui]ld[ing]. Repair public lighting [on] south side of b[ui]ld[ing]. Repair broken window (2)[in] Apt. #6. Repair storage door und[er] stairs. Provide effective extermination of rodents. Menor next inspected the 732 and 740 Apartments on February 4, 1997. The inspections revealed that none of the violations that Menor had discovered during his January 31, 1997, inspections (and had noted in his reports of those inspections) had been remedied, with the exception of the violation resulting from the broken heater in Apartment number 2 in the 732 Apartments, which had been repaired since the January 31, 1997, inspections. (One of the heaters in Apartment number 9 in the 732 Apartments, however, was now in disrepair.) Although Petitioner had taken steps to address some of these continuing violations, his efforts, as Menor's February 4, 1997, inspections revealed, were inadequate to correct the targeted problems. Petitioner had ordered meter covers from the City of Pahokee, but he had not yet received them nor had he placed any temporary coverings over the uncovered meters. He had attempted to repair the cracks in the building on the south side of the 732 Apartments; the door to the storage area under the stairs in the 732 Apartments; the overhang in front of Apartment numbers 4 and 5 in the 740 Apartments; the overhang on the west side of the 740 Apartments; the wall on the south side of the 740 Apartments; and the door to the storage area under the stairs in the 740 Apartments; but the repairs he had made had not been done properly. He had put rat poison under the buildings and given tenants rat traps in an effort to alleviate the rodent infestation problem at the 732 and 740 Apartments; however, he had not gone to the expense of hiring a professional exterminator to deal with the problem, even though it should have been apparent to him that the services of an exterminator were needed to effectively eliminate the rat population at the two locations. Following the February 4, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the 732 and 740 Apartments at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on February 6, 1997. Menor spoke with Petitioner and advised Petitioner of the contents of the inspection reports and what Petitioner needed to do to remedy the violations noted in the reports. Menor returned to inspect the 732 and 740 Apartments on February 6, 1997. Upon his arrival, Menor met Petitioner, who had also just arrived on the scene. In Petitioner's car were screens and light bulbs that Petitioner intended to install in the apartments and public areas that needed them. Notwithstanding Petitioner's intentions, none of the violations that Menor had discovered during his February 4, 1997, inspections (and had noted in his reports of those inspections) had yet been remedied. Inasmuch as the deadline that Menor had given Petitioner to correct these violations had passed, Menor issued Petitioner two citations, one for the continuing violations at the 732 Apartments and the other for the continuing violations at the 740 Apartments. Each citation directed Petitioner "to pay a fine in the amount of $500.00," but provided that Petitioner could "have the amount of the fine . . . reduced or waived completely by demonstrating good faith in correcting the violations or by presenting 'before and after' evidence to the Palm Beach County Public Health Unit within 48 hours of the time of the issuance of th[e] citation." Menor told Petitioner that he would be back to the apartments on Monday, February 10, 1997, to see if the violations had been corrected and if a reduction or waiver of the fines was warranted. On February 10, 1997, Petitioner telephoned Menor and advised him that he needed an extra day to bring the 732 and 740 Apartments into compliance. Menor responded by telling Petitioner that he would postpone his inspections of the apartments until the following day. The following day, February 11, 1997, Menor paid a return visit to the 732 and 740 Apartments to conduct post- citation inspections. Some of the continuing violations that Menor had discovered during his February 4, 1997, inspections (and had noted in his reports of those inspections) had still not yet been remedied. These unremedied violations created conditions that posed a serious threat to the health and safety of the tenants. Following his February 11, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections and which gave notice that these violations needed to be corrected by 8:00 a.m. on February 17, 1997. Menor provided Petitioner, who was present during the inspections, copies of the inspection reports. The inspection report describing the condition of the 732 Apartments and grounds at the time of the February 11, 1997, inspection contained the following "comments and instructions": Replace covers for water meters. . . . Repair door to storage area. Provide effective extermination of rodents. Repair cracks in building, south side. Screens missing from bathroom window[s]. The inspection report describing the condition of the 740 Apartments and grounds at the time of the February 11, 1997, inspection contained the following "comments and instructions": Repair overhang [on] corner of building['s] west side./Repair storage door. Provide covers for water meters. Repair 2 broken windows [in] Apt. #6. Provide effective extermination of rodents. Menor next inspected the 732 and 740 Apartments on February 17, 1997. The inspections revealed that at neither location had Petitioner yet "provide[d] covers for water meters" or "provide[d] effective extermination of rodents," although he had corrected the other violations Menor had discovered during his February 11, 1997, inspections (and had noted in his reports of those inspections). Following his February 17, 1997, inspections, Menor prepared inspection reports which accurately described the violations that existed at the two locations at the time of the inspections. Copies of these inspection reports were "faxed" to Petitioner on February 18, 1997. On February 24, 1997, Menor received a complaint from a tenant living in Apartment number 4 in the 740 Apartments that there were "rats in [her] refrigerator." Later that day, Menor went to the 740 Apartments to investigate the complaint. His investigation revealed evidence that rats had entered the complainant's refrigerator through a hole. Menor spoke with Petitioner following his investigation and emphasized the importance of Petitioner providing his tenants with effective "pest control." Two days later, on February 26, 1997, Petitioner telephoned Menor and told Menor that he (Petitioner) had made arrangements for a "pest control" company, Glades Pest Control, to provide extermination services at the 732 and 740 Apartments, but that it would not be until March 4, 1997, that such services would be rendered. On April 18, 1997, Menor returned to the 732 and 740 Apartments to ascertain whether the continuing violations that he had discovered during his February 17, 1997, inspections (and had noted in his reports of those inspections) had been remedied. The inspections revealed that these violations had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding Respondent guilty of the violations alleged in the February 6, 1997, citations and fining him a total of $1,000.00 ($500.00 per citation) for these violations. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997.
The Issue Whether Respondent, Lennox National Account Services (Lennox or Respondent), violated the Florida Civil Rights Act of 1992,1 by discriminating 1 Unless otherwise indicated, all references to the Florida Statutes, Florida Administrative Code, and federal laws are to the current versions, which have not substantively changed since the time of the alleged discrimination. against the employment of Matthew P. Mathews (Petitioner) because of his disability, or in retaliation for his engagement in protected activities.
Findings Of Fact Lennox sells, installs, recycles, and maintains commercial heating, ventilation, and air-conditioning equipment for large, national companies. Lennox’s services are performed by service technicians assigned to branch offices throughout the United States. Petitioner accepted employment with Lennox as a Level II Service Technician on June 10, 2019. Petitioner’s Discrimination Complaint alleges: Complainant (CP), began his employment with Respondent in 06/2019 and holds the position of Level II Tech. CP was subjected to retaliation, different terms and conditions of employment and was held to a different standard because of his disability and Respondent failed to accommodate him. CP sustained a job-related injury on 02/11/2020, CP reported the injury to his Manager Keith Green on 02/12/2020. CP told Keith he needed to see a doctor; Keith pressed CP to do more work. CP told Keith in a loud, clear voice that he needed to see the doctor. CP saw Dr. Bernier and sent Keith a copy of his doctor slip. On 02/24/2020, CP went to Lennox NAS corporate for a week of classroom training and went on tour with all other students. CP met all corporate leadership and they all saw he was injured. Steve Coe (Safety Director) pulled CP from class to a closed-door meeting with Chris and began to yell at him and berate CP about his injury. CP was asked why he didn’t report the injury, but CP told them he did. CP asked Steve Coe to consider his credentials and allow him the opportunity to do other work, CP was dismissed. On 03/04/2020, Respondent retaliated against CP by retrieving the equipment provided to him such as, his work van, company cell phone and he no longer had access to his work email. CP contacted Joanna Amy to inquiry why they had taken away his work equipment and why he no longer had access to his work email. Joanna informed CP it was because he had filed for Workman’s Comp. CP status is currently unknown, he is not considered terminated and he has not resigned but, is not currently working. During his employment with Lennox, Petitioner was assigned to the Panama City Beach Branch, where he reported to Branch Manager Keith Green. Steve Coe was the assigned safety director at the time. As part of his orientation process for employment with Lennox, Petitioner acknowledged receipt of the company handbook (Handbook). The Handbook states that Lennox offers reasonable accommodations to qualified, disabled candidates and employees. The Handbook further states that the accommodation process (including work restrictions) is administered by Lennox’s office of human resources and must be properly documented. Specifically, section 5.9 of the Handbook entitled “Accommodations,” provides: The accommodation process (including ‘light duty,’ work restrictions, etc.), is administered – exclusively – by Human Resources and must be properly documented. If the need for accommodation is not obvious, you will be required to submit medical documentation about your disability and the limitation(s) that you are experiencing. You may also be asked to provide an explanation the workplace barrier(s) that need to be accommodated and a description of the desired accommodation. The forms in question – the ‘Healthcare Provider Information Request Form’ and the ‘Accommodation Request Form,’ respectively – are available from Human Resources and will serve as the basis for your interactive discussions with them. During his active employment, Lennox provided Petitioner with access to a company cell phone, email, and fleet work van solely for work-related purposes. In addition to the Handbook, Petitioner acknowledged receiving the NAS Policy & Procedures Booklet, which included the Company Vehicle Use Requirements and the Fleet Safety Policy. That vehicle policy stated, in relevant part: B. Vehicle Use Understand that you will be assigned a Company vehicle to be used to perform your job responsibilities. You will also be allowed to use the vehicle to travel between home and work (i.e. for commuting) …. You will not … use the vehicle for personal use beyond that which is incidental to your commute to or from work. (emphasis added). In addition to the use of a company vehicle, Petitioner acknowledged the cell phone agreement wherein he agreed that Lennox was providing him with a cell phone for “business use.” Petitioner also acknowledged receipt of the Lennox’s code of business conduct (Code of Conduct). The Code of Conduct includes Lennox’s policy prohibiting discrimination and/or harassment due to a disability or any other status protected by federal, state, and/or local law. The Code of Conduct includes reporting procedures encouraging reporting of alleged discrimination, harassment, or retaliation. Access to information about Lennox’s policies, including the Code of Conduct and reporting procedures, is available to employees online (among other places), and explained through training sessions, new-hire orientation, and company publications and postings. According to Petitioner, on October 24, 2019, while working for Lennox in the Panama City area, he was ordered by Keith Green to pick up a crane pad above his head, and when he did, “he felt something in his knee.” Petitioner allegedly spoke to Mr. Green on the phone when Mr. Green sent him to another job and said to Mr. Green, “Will you please be mindful of your tradesman because my knee is hurting.” Petitioner testified that the phone call became “hostile” and that he ended up talking to Safety Director Steve Coe, who sent Petitioner to Tallahassee for a four-hour ladder training course. There is no documentation indicating that Petitioner reported the alleged knee injury as an on-the-job injury that day. After that, Petitioner allegedly either aggravated his knee injury, or injured his knee again, while using an “unapproved” ladder on February 11, 2020, at the direction of Mr. Green. On February 13, 2020, Petitioner spoke with Lennox’s safety director, Steve Coe, about discomfort with his right knee. When asked by Mr. Coe if he injured his knee at work, Petitioner replied he was going for an MRI and if he needs surgery, he will report the injury as “work-related”; otherwise, he would handle it with his own insurance. Mr. Coe explained to Petitioner that is not an appropriate way of handling the matter and then outlined the process for reporting work-related injuries. Petitioner did not report the injury as work-related to Mr. Coe or his supervisor, Mr. Green, and he subsequently returned to work to attend a training class. Petitioner requested, and was allowed time off work on February 28, 2020, to attend an MRI appointment for his right knee. On March 2, 2020, Petitioner notified Lennox that he was unable to return to work due to his knee injury. On the same day, Petitioner applied for both short-term disability and workers’ compensation. Petitioner’s short-term disability claim was handled by Lennox’s third-party disability administrator, Sedgwick. The short-term disability notification to Lennox from Sedgwick, which also included Petitioner as a recipient, referenced Petitioner’s last day worked as February 27, 2020, and first day of absence as March 2, 2020. The notification further stated that Petitioner would also be evaluated under the Family Medical Leave Act (FMLA) for available coverage. Sedgewick’s March 2, 2020, short-term disability notification also informed Petitioner that he may want to apply for a “reasonable accommodation” in addition to other potential benefits, such as unpaid personal leave of absence. The notification further stated that during its review process, Petitioner’s absences should be treated as pending, with neither approval nor disapproval under Lennox’s attendance policy. Because Petitioner indicated in his short-term disability filing that his knee injury occurred at work, a workers’ compensation claim was initiated with Lennox’s third-party workers’ compensation administrator, ESIS. Because Petitioner was no longer actively working, on March 4, 2020, consistent with company practice and policy, Lennox collected its fleet van that had been issued to Petitioner. Also, since Petitioner had not returned to work or provided a return to work date, Lennox disabled Petitioner’s access to the company email since he was no longer at work. Petitioner claims that he was treated differently than another Lennox service technician, Julian Wiles, who allegedly was permitted to retain access to the company portal while on leave. Petitioner’s evidence of this was the fact that Mr. Wiles was included in company training emails while on leave. Further evidence indicated, however, that simply because Mr. Wiles was included as a recipient on company emails sent to numerous other employees about training requirements, it did not indicate that Mr. Wiles had access to the portal while on approved leave. Rather, the training email evidence submitted by Petitioner was simply reflective of training emails that were sent out in clusters for those who had not completed training. Further, it was shown that, unlike Petitioner, Mr. Wiles was on approved medical leave during the period he was absent because he had provided necessary medical documentation, and then he eventually returned to work. Although Petitioner was removed from Lennox’s portal, at Petitioner’s request, Lennox agreed to allow Petitioner to retain his company-issued cell phone. Petitioner’s short-term disability was denied by Sedgwick on March 9, 2020. Sedgwick’s short-term disability denial letter stated, in part, that Petitioner’s leaves of absence, unless excused by another form of leave or a reasonable accommodation, were unapproved under Lennox’s attendance policy, which is set forth in the Handbook. Specifically, the March 9, 2020, short-term disability denial letter from Sedgwick advised Petitioner: Attendance: The denial of your claim means that the absences in question – unless excused by another form of leave or a reasonable accommodation – are unapproved under your Company Attendance Policy (Appendix C to the Employee Handbook). Excessive Unapproved absences or 3 consecutive work days of No-Call, No-Show will result in discipline, up to and including the termination of your employment. Please talk to your Human Resources Business Partner if you have questions. Reasonable Accommodations: In addition to paid and unpaid leave, your company also offers reasonable accommodations (including additional unpaid time-off) to qualified disabled employees. Reasonable accommodations are managed by Human Resources – not by the LII Disability Leave Service Center. For more information, please refer to the Employee Handbook. To apply for an accommodation, please contact your Human Resources Business Partner at the number listed in Appendix A to the Employee Handbook. (emphasis added). Subsequently, on March 10, 2020, Sedgwick notified Mr. Green and Lennox that Petitioner’s short-term disability benefit claim was denied as of March 2, 2020, due to the worker’s compensation exclusion, and that Petitioner was not eligible for leave under FMLA due to length of service. Because Petitioner did not qualify for leave under FMLA, he was deemed on unapproved absence from Lennox as of March 2, 2020. On May 14, 2020, Lennox’s human resources director, Karen Cerrato, sent Petitioner a letter (the May 14th letter) advising Petitioner that he needed to contact Lennox’s office of human resources by May 19, 2020, to arrange a convenient time to discuss leave options or return to work with or without reasonable accommodations. The May 14th letter made it clear that, if Petitioner wanted to obtain approved leave or reasonable accommodations, he was responsible for making the requests and filling out necessary paperwork. Accommodation paperwork was attached to the May 14th letter, including an “Accommodation Request Form” and a “Health Care Provider Information Form.” The attached accommodation paperwork stated: You are responsible for making sure that HR receives the completed forms and any other information needed to support your accommodation request. In most cases, this will require you to return documentation and/or follow-up with your health care provider to ensure that they are doing their part. On March 18, 2020, Petitioner’s worker’s compensation claim was denied by the Florida Department of Financial Services, Division of Workers’ Compensation, on the basis that “there was no accident as defined by 440.02(1) that resulted in said injury.” On May 19, 2020, Petitioner responded to Ms. Cerrato’s May 14th letter by providing a document from Sedgwick indicating that he was able to return to work on May 3, 2020, without restrictions. The next day, May 20, 2020, Ms. Cerrato sent an email to Petitioner advising that he had not adequately responded to the May 14th letter’s request for his leave options or return to work. The email stated that, not only was the Sedgwick document that Petitioner provided her insufficient to comprise an accommodation request, it rather “provides an unrestricted return to work date of 5/3 (more than 2 weeks ago).” The final paragraph of the email stated: Please call me before 4:00 pm today so we can discuss the option you plan to pursue. If I do not receive your call by 4:00 pm today, I will understand (based on the paperwork you provided) that you have been able to work without restrictions since 5/3 and have elected to resign. In response, that same day, May 20, 2020, Petitioner’s workers’ compensation counsel, Chris Cumberland, sent an email to Ms. Cerrato, but failed to provide a return to work date or clarify whether reasonable accommodations were needed. Rather, Petitioner’s counsel’s email stated in pertinent part: Mr. Mathews is willing to return to work, but as the carrier has not provided an authorized workers compensation physician, he is unaware at this time as to what his work restrictions truly are. He knows personally that he is in a great deal of pain and that he likely has a torn meniscus in his knee which needs to be repaired before he can perform tasks at a full duty level. I would ask that you please discuss this with your counsel and I will advise my client accordingly. Jodie Michalski, counsel for Lennox, responded to Mr. Cumberland via email that same day, May 20, 2020, noting Petitioner’s unapproved absence status since early March because of his previously denied short-term disability, workers’ compensation, and FMLA claims, and suggesting the option of applying for a reasonable accommodation under the Americans with Disabilities Act (ADA). Ms. Michalski’s email also advised Petitioner’s counsel that Lennox was willing to grant a reasonable period for additional unpaid leave so that Petitioner could complete the necessary paperwork. Ms. Michalski’s email posed the following questions: Is your client interested in pursuing an accommodation (including additional, unpaid time off)? If so, can he commit to providing the completed paperwork to Human Resources within 15 calendar days, which we consider a reasonable amount of time? The last sentence of Ms. Michalski’s email stated: “I look forward to your response by 4:00 p.m. Alternatively, your client can reach out to Karen Cerrato directly with his response.” When neither Mr. Cumberland nor Petitioner timely responded to Ms. Michalski’s May 20th email to Petitioner’s counsel, on May 26, 2020, Ms. Cerrato emailed Petitioner and advised him that, in the absence of an appropriate response, Lennox would conclude there was no interest in a reasonable accommodation and would process Petitioner’s separation of employment after 4:00 p.m. on May 27, 2020. At the time, Petitioner had received approximately 84 days of unapproved absence and was advised that if he would like to pursue a reasonable accommodation, including additional unpaid leave, that he must contact Ms. Cerrato immediately. On May 27, 2020, after the 4:00 p.m. deadline, instead of responding directly to Ms. Cerrato’s requests for clarification, Petitioner sent three separate emails to Ms. Cerrato indicating that he was willing to work within the restrictions from his doctor (which were not provided), referring to the disability statement previously provided (the one stating that he could return to work May 3rd), and advising that he had an upcoming doctor visit. Petitioner’s correspondence failed to provide the requested accommodation paperwork and, instead, alleged, “To this point, your demands have been impossible because Lennox has prevented me from various resources.” Ms. Cerrato responded to Petitioner by email that same day, again requesting that he engage in good faith with Lennox, address the questions previously directed to him, provide any restrictions from his doctor, and complete the accommodation paperwork, including the Employee Accommodation Request Form and Health Care Provider Information Form. Ms. Cerrato’s email gave Petitioner more time, until May 28, 2020, to provide the previously requested information and necessary paperwork. She also advised Petitioner that if he failed to provide the information and paperwork by June 12, 2020, it would be assumed that Petitioner was cleared to return to work without restrictions but that he had chosen not to return to employment with Lennox. Petitioner responded with another email later that same day, May 27th, promising to submit the accommodation paperwork following his doctor’s appointment scheduled for May 28, 2020. In his email, Petitioner also made complaints directed against Mr. Green and Mr. Coe regarding Petitioner’s alleged injury and alleging discrimination. Ms. Cerrato contacted Petitioner via email the next morning, May 28, 2020, stating, in part, that she looked forward to receiving the completed paperwork and engaging in the interactive process. In her email, Ms. Cerrato also advised Petitioner that his complaint against Ms. Cerrato, Mr. Green, and others for discrimination, harassment, and bullying, had been investigated and that the allegations were not substantiated. Petitioner responded to Ms. Cerrato via email later that day, May 28th, advising that his doctor’s appointment had been rescheduled for May 29th, suggesting that Ms. Cerrato was unwilling to fairly address issues he had reported to her, suggesting that she had made an “offer” and requesting arbitration. Ms. Cerrato responded by email the next day stating: I am happy to grant you an additional day to submit your accommodation paperwork. In the meantime, please clarify the following two points: You reference my “offer’. What offer did I make? You reference “arbitration” several times. Please explain what you mean. I look forward to receiving your paperwork today. Petitioner did not provide the paperwork or respond. On June 5, 2020, Ms. Cerrato sent an email to Petitioner stating: I understood from your May 28, 2020 email that you would be sending me your accommodation request and supporting medical documentation on May 29 after your doctor’s appointment. Another week has passed, but we have not received anything further from you (e.g. your request form, medical support, a request for more time, or a response to the questions I asked on May 28). We must concluded [sic], therefore, that you will not be pursuing an accommodation or returning to work. As such, we have processed your separation, effective today. If you feel there has been an error (e.g. if I missed an email from you), please let me know. If I do not hear from you, we wish you well in your future endeavors. Petitioner failed to respond. Petitioner was never considered by Lennox to be disabled, never properly requested accommodations, and failed to prove that he had a work-related injury. Petitioner never provided required paperwork, did not clarify any workplace restrictions, never requested more time before returning to work, and never advised whether he even intended to return to work. Petitioner’s workers’ compensation claim was denied, and the evidence submitted in this case was insufficient to prove Petitioner’s claims of discrimination or retaliation.
Conclusions For Petitioner: Matthew P. Mathews, pro se Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 For Respondent: Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast Second Avenue Miami, Florida 33131
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 22nd day of June 2021, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2021. Matthew Mathews Apartment 305 7940 Front Beach Road Panama City Beach, Florida 32407 Sherril M. Colombo, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Stefanie Mederos, Esquire Littler Mendelson, P.C. Wells Fargo Center, Suite 2700 333 Southeast 2nd Avenue Miami, Florida 33131 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Laura Dietrich, Esquire Littler Mendelson, P.C. Suite 1500, Lock Box 116 2001 Ross Avenue Dallas, Texas 75201
The Issue Whether Florida Administrative Code Rule 64I-1.001(1)(c) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Stipulated facts Mr. Rodriguez suffered a brain injury as a result of an automobile accident. Mr. Rodriguez is currently residing in Florida and presently intends to remain in Florida as his permanent home. Mr. Rodriguez is currently an undocumented immigrant with no federally-recognized immigration status. On or about May 2004, Mr. Rodriguez's legal representative applied for BSCI program services for Mr. Rodriguez, who was then denied on the basis that he was not a legal Florida resident. The Department shared all notices regarding rulemaking for the rule with Mr. Rodriguez's legal representatives throughout the original rulemaking process. There were no requests for workshops or hearings on the rule. The BSCI Manual instructs the case manager to determine legal residency to initiate the eligibility process. The BSCI program is wholly funded by the State of Florida from state revenue sources, including appropriations, a percentage of civil penalties received by county courts, recovery of third-party payments for medical services, and gifts. See § 381.79, Fla. Stat. Facts established at hearing The BSCI program provides rehabilitation services, such as in-patient rehabilitation services, out-patient rehabilitation services, day treatment programs, medical equipment, and home modifications, for eligible persons who have sustained traumatic brain or spinal cord injuries. The BSCI program provides funding as a last resort for services an injured person needs to integrate into the community. Every person who has suffered a moderate-to-severe brain or spinal cord injury in Florida is referred to the BSCI program's central registry. The BSCI program manual requires the case manager to determine legal residency in this state as the first step in determining eligibility for BSCI program services. When there is a question regarding Florida residency, the manual instructs the case manager to request proof of legal Florida residency, which, when there is a question regarding legal immigration status, must consist of a permanent resident alien card or a letter or document from the United States Immigration Department granting parolee or other status that would allow the person to remain indefinitely or permanently in the United States. The BSCI program has limited financial resources, but the Department has not established an order of selection for eligible persons in order to deal with a funding shortage, as permitted by Section 381.76(2), Florida Statutes. Rule, statutory authority, and statue implemented The BSCI program, found in Sections 381.739 through 381.79, Florida Statutes, was created by the Legislature expressly to ensure the referral of individuals who have moderate-to-severe brain or spinal cord injuries to the brain and spinal cord injury program, a coordinated rehabilitation program administered by the department. The program shall provide eligible persons, as defined in s. 381.76, the opportunity to obtain the necessary rehabilitative services enabling them to be referred to a vocational rehabilitation program or to return to an appropriate level of functioning in their community. Further, it is intended that permanent disability be avoided, whenever possible, through prevention, early identification, emergency medical services and transport, and proper medical and rehabilitative treatment. § 381.7395, Fla. Stat. The Department is the state agency responsible for implementing and administering the BSCI program. § 381.75, Fla. Stat. The eligibility criteria for the BSCI program are set forth in Section 381.76, Florida Statutes, as follows: An individual shall be accepted as eligible for the brain and spinal cord injury program following certification by the department that the individual: Has been referred to the central registry pursuant to s. 381.74; Is a legal resident of this state at the time of application for services; Has sustained a brain or spinal cord injury; Is medically stable; and Is reasonably expected to achieve reintegration into the community through services provided by the brain and spinal cord injury program. Section 381.76(2), Florida Statutes, further provides that, "[i]f the department is unable to provide services to all eligible individuals, the department may establish an order of selection." Pursuant to Section 381.011(13), Florida Statutes, the Department has the authority to "[a]dopt rules pursuant to ss. 120.56(1) and 120.54 to implement the provisions of law conferring duties upon it. This subsection does not authorize the department to require a permit or license unless such requirement is specifically provided by law." In 2005, the Department adopted Florida Administrative Code Rule 64I-1.001(1)(c). Rule 64I-1.001(1)(c) added a definition of "legal resident" to a list of definitions of terms used in Sections 381.739-.79, Florida Statutes, consistent with the definitions included in Section 381.745, Florida Statutes. Rule 64I-1.001(1)(c) defines "legal resident" as follows: "A person who currently lives in Florida, has the present intent to remain in Florida indefinitely, and has lawful permanent presence in the United States of America." As part of the rulemaking procedure, the Department published in the Florida Administrative Weekly a notice of its intent to adopt Rule 64I-1.001(1)(c) containing the information required by Section 120.54(3)(a)(1), Florida Statutes. In the notice, the Department identified Section 381.011, Florida Statutes, as the specific authority for the rule and Section 381.76, Florida Statutes, as the law implemented. The Department also sent the notice to the Administrative Procedures committee, together with a document that provided as follows:
The Issue The issue for determination is whether Petitioner should pay a $500 fine to the Polk County Health Unit for operating residential migrant housing without a permit.
Findings Of Fact Respondent is the governmental agency responsible for issuing permits for residential migrant housing in accordance with Section 381.0081(2), Florida Statutes. 1/ Respondent is also responsible for inspecting residential migrant housing through Respondent's local county health units. Roger Burgere, an environmental specialist for the Polk County Public Health Unit, responded to a nuisance complaint on January 18, 1996. The complaint alleged that residential migrant housing was being operated on Petitioner's property at 2550 Smith Road in Haines City, Florida. There are four dwelling units on Petitioner's property. One dwelling unit is a house. The other three dwelling units are mobile homes located between the house and the roadway. Raw sewage from the mobile home nearest the road was on the ground within 15 feet of the mobile home. The sewage covered an area of approximately 20 square feet. At the third mobile home from the roadway, a pipe leading to the septic tank had broken. Raw sewage covered an area approximately five feet by four feet. Approximately two- thirds of this area was under the mobile home. The house had washing machine waste, or "gray water," on the ground in the vicinity of the house. Windows were broken. There were multiple holes in the ceilings and walls. Four or five bags commonly used by migrant workers in picking citrus fruit from trees were located outside the dwelling units. The bags were made of tough plastic or fabric and made so that they can be worn from the neck like an apron. Each bag holds about 80 pounds of fruit. Fruit groves are located within one mile of Petitioner's property. Many other groves are located within a 20 mile radius of Petitioner's property. Approximately three cars were parked in the driveways of the dwelling units. All of the vehicles were licensed in states other than Florida. A family occupied the house. Approximately 12 men occupied the mobile homes. The 12 men are migrant farmworkers within the meaning of Section 381.008(4). Each man is employed to harvest fruit by hand labor, and each man changes his residence to do so. Within the last 12 months, each man has been employed to harvest fruit by hand labor and has changed his residence for such purposes. Petitioner operated residential migrant housing within the meaning of Section 381.008(8). Petitioner rented dwelling units on her property for occupancy by five or more migrant workers. Petitioner does not have a permit to operate residential migrant housing. Petitioner rents to single women who take in migrant workers as borders. Petitioner has engaged in this method of operation for many years. Petitioner knew or should have known upon reasonable inquiry that her property was being used for residential migrant housing. Evidence that Petitioner's property was used for residential migrant housing was obvious to anyone on the property. Petitioner resides on the property. Mr. Burgere issued a citation to Petitioner that imposed a $500 fine. Mr. Burgere also advised Petitioner that the fine would be waived if Petitioner applied for a permit within 48 hours of the citation and agreed to correct the inadequacies in her residential migrant housing. Petitioner never applied for a permit and evicted the migrant farmworkers from her property. Over the next 14 days, Petitioner made the repairs necessary to correct leaking sewage and to repair the holes in the ceiling and walls of the house. Petitioner is no longer operating residential migrant housing on her property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Petitioner guilty of operating migrant residential housing without a permit and requiring Petitioner to pay a fine of $500 in the manner and place prescribed by Respondent. RECOMMENDED this 31st day of May, 1996, in Tallahassee, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1996.
The Issue Whether Respondent Robin Audifredd d/b/a St. Francis Place a/k/a Family Ties (Respondent) operated an assisted living facility without a required license and, if so, what is the appropriate penalty.
Findings Of Fact Respondent is the sole owner of St. Francis Place. She has never done business as "Family Ties, ACLF, Inc." At all pertinent times, Respondent held a license from the Florida Department of Business and Professional Regulation to operate St. Francis Place as a boarding home. Respondent's license to operate St. Francis Place as a boarding house allows up to 16 residents. Respondent provides non-transient housing for her residents. During pertinent times, there were approximately 13 residents housed at St. Francis Place. Some residents of St. Francis Place have conditions such as alcoholism, dementia, schizophrenia, manic depression, memory loss, and head trauma. Most of the residents of St. Francis Place were placed by other agencies, such as the United States Veterans Administration (VA). In addition to housing residents for pay, at the time of the hearing, Respondent was providing housing to three former homeless residents free of charge. According to the Complaint, Respondent was operating St. Francis Place in a manner that required a license from the Agency as an ALF because she was providing "personal services"2/ to one or more residents who were not related to Respondent. A license from the Agency is not required for facilities that provide "personal services" to no more than two non-relative residents who do not receive optional state supplementation, if the owner or renter of the facility resides at the facility. See Conclusions of Law 65, infra. According to Respondent, she did not need to be licensed as an ALF because she resided at St. Francis Place and only provided "personal services" to one non-relative resident, who was not receiving optional state supplementation. There is no evidence that any resident of St. Francis Place was receiving optional state supplementation during the pertinent time period. Respondent owns the building located at 1030 Jo Jo Road, Pensacola, Florida, from which she operates St. Francis Place. Respondent also owns a home at 425 Belle Chase Way, Pensacola, Florida. According to Respondent, she "resides" at both 1030 Jo Jo Road and at 425 Belle Chase Way, in Pensacola, Florida. Respondent testified that she actually spends more time at 1030 Jo Jo Road, where St. Francis Place is located. Petitioner's employees provided testimonial evidence to the effect that Respondent spends a great deal of time at St. Francis Place. Their testimony supports a finding that Respondent spends three or four nights a week at St. Francis Place. Despite the evidence showing that Respondent spends a lot of her time at St. Francis Place, it is found that Respondent's residence is 425 Belle Chase Way, Pensacola, Florida, rather than 1030 Jo Jo Road, based upon the following findings which are supported by clear and convincing evidence: Respondent claims homestead exemption at 425 Belle Chase Way. Respondent receives her phone bill at 425 Belle Chase Way address. In 2009, Respondent's address was listed as 425 Belle Chase Way on the title listing Respondent as a co-owner of her mother's motor vehicle. Respondent had no regular room at St. Francis Place. Rather, she either slept on a couch near the main entrance or on a couch in a back room. Although Respondent would also occasionally sleep in a room set aside for residents when there was a vacancy, Respondent had no regular room at St. Francis Place to sleep or keep her clothes. In February of 2009, Respondent's attorney in Respondent's divorce proceedings listed Respondent's address as 425 Belle Chase Way. Prior to February 2010, the Florida Department of Motor Vehicles and Public Safety (DMV) listed Respondent's address as 425 Belle Chase Way. On February 13, 2010, the DMV issued Respondent a duplicate driver's license indicating that her address was 425 Belle Chase Way. By the time of the final hearing, the address listed on Respondent's Florida driver's license had been changed to 1030 Jo Jo Road. The change of address from 425 Belle Chase Way to 1030 Jo Jo Road was made on April 8, 2010, just five days prior to the final hearing. Despite the recent change, Respondent testified that she did not know what address was listed on her driver's license. That testimony was not credible. Neither was Respondent's testimony that she "resided" at St. Francis Place. The phone number and address for St. Francis Place is listed in the Pensacola area 2009 AT&T Real Yellow Pages (Yellow Pages) under the heading "Assisted Living." At the final hearing, Respondent explained that she never authorized the listing and has contacted Yellow Pages and asked them to remove the listing. Respondent's testimony in that regard is undisputed, and it is found that Respondent did not authorize St. Francis Place to be listed in the Yellow Pages under the heading "Assisted Living." On March 25, 2009, a site visit of St. Francis Place was conducted by the Medicaid Fraud Unit of the Florida Attorney General's Office. The next day, on March 26, 2009, the Agency for Health Care Administration conducted a survey of St. Francis Place. The undisputed testimony clearly showed that, when the site visit and survey were conducted, there was one resident, identified as "G. T.," who was totally contracted and required assistance with daily living such as bathing, dressing, feeding, and taking medications. Respondent admits, and it is found, that Respondent and her employees provided "personal services" to G. T. within the meaning of applicable ALF licensing laws. G. T. is a resident who has had multiple sclerosis for many years. Respondent has known G. T. for over 16 years. G. T. had been a resident of St. Francis Place since it first opened its doors approximately six years prior to the date of the final hearing. The Agency was aware that G. T. was a resident of St. Francis Place and was receiving personal services prior to the March 2009, site visit and survey. There is no indication, however, that the Agency took any action prior to March 2009, to alert Respondent that she was considered to be operating an ALF without a license. Katherine Cone and Norma Endress were members of the teams who conducted the site visit and survey of Respondent's St. Francis Place facility on March 25 and March 26, 2009, respectively. During her visit on March 25, 2009, Ms. Cone believed that resident G. T. was not receiving proper care and arranged for her transport to a local hospital. G. T. was treated and released back to St. Francis Place. According to Ms. Endress, who saw G. T. the very next day, she observed no demonstrated harm to any resident at St. Francis Place. The evidence is insufficient to conclude that G. T. was harmed while a residing at St. Francis Place.3/ After the site visit and survey, both Ms. Cone and Ms. Endress believed that, in addition to the personal services provided to G. T., there was evidence that staff at St. Francis Place was providing personal services in the form of assistance in administering medications or filling pill organizers for other residents. The evidence presented at the final hearing, however, was insufficient to show, clearly and convincingly, that personal services were rendered to other residents. The insufficient evidence included: Photographs and the surveyors' recollections of pill reminder or pill organizer boxes that looked as though they were full of medications; Photographs and the surveyors' recollections of medication containers stored in a centrally located medication cart with wheels; Photographs and Ms. Cone's recollection of documents in folders above the medication cart containing information related to transportation and outside services for residents such as pharmacies and transportation companies. Ms. Cone's testimony that one of Respondent's employees, Kathleen Wentworth, told her at the time of the site visit that she maintained pill organizers with medications for several residents, and that Ms. Wentworth had signed a statement to the effect that staff at St. Francis Place administered medications to residents. Ms. Endress' testimony that one of the residents told her that staff at St. Francis Place had filled his pill reminder box. The evidence was insufficient because it was not further supported. Respondent and her testifying employees explained, and other evidence indicated, that the medication cart remained unlocked and was accessible so that residents could retrieve their own medications. There was no testimony from a St. Francis Place resident, employee or Respondent, or anyone else with actual knowledge, indicating that either Respondent or her employees ever assisted any resident other than G. T., with their medications. As far as Ms. Cone's hearsay recollection of what Ms. Wentworth told her, Ms. Wentworth testified at the hearing that the conversation did not occur. In addition, while Ms. Cone remembered a written statement signed by Ms. Wentworth, no such document was entered into evidence. Finally, photographs and Ms. Cone's recollection of folders with documents about services available from other vendors, such as pharmacies or transportation providers, did not show that Respondent was providing personal services to her residents. According to Ms. Endress, prior to leaving St. Francis Place after the site visit on March 26, 2009, she informed Respondent that Respondent was operating without the requisite ALF license, and that Respondent would be hearing from the Agency within 10 days. In contrast, Respondent testified that one of the Agency's employees, Ms. Klug, told her that she could "care for two people without an ALF license," and that Ms. Endress had given her similar assurances. Consistent with Ms. Endress's recollection, the Agency sent a letter to Respondent dated March 27, 2009, which informed Respondent that the Agency "considers you to be operating as an Assisted Living Facility (ALF) without being licensed." Considering that letter, together with the recollection of Ms. Endress, and the comparative credibility of the witnesses testifying on this point, it is found that, while one or more Agency employees informed Respondent that there was an exception to the AFL license requirements, Ms. Endress informed Respondent on March 26, 2009, that Respondent needed an ALF license, and that Respondent would be hearing from the Agency within ten days. The Agency's letter mailed to Respondent on March 27, 2009, stated in its entirety: Dear Ms. Audiffred, You are hereby notified that the Agency for Health Care Administration considers you to be operating as an Assisted Living Facility (ALF) without being licensed. Based on Section 429.14(1)(m), Florida Statutes (Fla. Stat.), it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license under Chapter 429, Part I, F.S. Section 429.02(6), Fla. Stat., defines an ALF as "any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator." The statute provides an exemption from licensure for not more than 2 adults who do not receive optional state supplementation (OSS) when the person who provides the housing, meals and personal services owns or rents the home and resides therein. This exception can be found in Section 420.04(2)(d), Fla. Stat. Based on evidence of unlicensed activity, the Agency intends to proceed with all available legal action, including bringing injunctive proceedings against you in a court of competent jurisdiction, to insure that you immediately cease and desist from offering these services. Further, Section 429.19(7), Fla. Stat., provides that "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day". [sic] If you believe you are not operating as an ALF in violation of law as described, you may submit in writing any information which would demonstrate that to the Agency within 24 hours of receipt of this notice. Any information you wish to have considered by the Agency must be actually received within 24 hours of your receipt of this Notice of Violation. If you have any questions, you may reach me at 850-922-8822. The letter was signed by Barbara Alford, R.N., B.S.N., Field Office Manager, and was copied to Alberta Granger, Assisted Living Unit Manager, and to the Regional Attorney. The fines set forth in the Complaint are premised upon penalties accruing at the rate of $1,000 per day from the day after the Agency's March 27, 2009, letter to Respondent, through July 21, 2009, when the Agency found that G. T. was still residing at Respondent's facility. According to paragraph 13 of the Complaint, "pursuant to § 408.812, Fla. Stat. (2009), the Agency notified the Respondent by certified mail that the facility was in violation of Florida Law on March 27, 2009." The Agency's March 27, 2009, letter, however, does not refer to section 408.812, contains a number of wrong citations to the law, and is equivocal on the issue of whether the Agency was actually requiring Respondent to cease and desist. The law in effect in March 2009 when the letter was written was the 2008 version of Florida Statutes, not the 2009 version referenced in the Complaint.4/ The first paragraph of the March 27, 2009, letter refers to section 429.14(1)(m), Florida Statutes, for the proposition that "it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license. " There is, however, no section 429.14(1)(m) in either the 2008 or 2009 version of section 429.14. The next statutory reference in the letter is in the second paragraph which refers to section 429.02(6) for the definition of ALF. Both the 2008 and 2009 versions of section 429.02(6), however, define "chemical restraint," not ALF. Although, further down in the second paragraph, the letter correctly refers to section 429.04(2)(d), for the exception where no license is required; the third paragraph of the letter erroneously refers to section 429.19(7) for the quote "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day." That language does not appear in either the 2008 or 2009 version of section 429.19, and has not appeared in chapter 429 since 2006. In fact, instead of providing for a $1,000 per day fine, section 429.19(7), Florida Statutes (2008), in effect on the date of the letter, provides: In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3)(c) to verify the correction of the violations. A provision for the imposition of a $1,000 per day fine from the date of notice does not appear in either the 2008 or 2009 versions of chapter 429. Rather, the authority to impose a $1,000 per day fine for operating an ALF without a license which was in effect in March 2009, when the letter was written is found in section 408.812(4), Florida Statutes (2008), which provides that "[a]ny person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance." Although the Complaint, served approximately 9 months after the letter, refers to section 408.812, the letter does not even mention chapter 408. In addition, the actual language of section 408.812(4) differs from the quote in the letter from an old version of section 429.19(7) that was no longer in effect. Aside from being inaccurate on the law, the letter does not explain why the Agency "considers" Respondent to be operating an ALF without a license, or what aspects of Respondent's operations required her to need a license beyond her license to operate a boarding house. Even though the letter fails to describe which aspects of Respondent's operations violate the law, and does not set forth the referenced "evidence of unlicensed activity," the letter advises Respondent that she may submit information to the Agency within 24 hours to demonstrate that she is "not operating an ALF in violation of law as described." Additionally, although suggesting that the Agency intends to proceed with legal action to insure that Respondent "cease[s] and desist[s] from offering these services," the letter does not identify which services or tell Respondent to stop operations. In addition to giving Respondent time to provide the Agency with information that she is not in violation of the law, the letter advises Respondent of the exception to the requirement of a license for not more than 2 adults "when the person who provides the housing, meals and personal services owns or rents the home and resides therein." While it has been found that Respondent did not actually reside at St. Francis Place, it is further found that Respondent believed that she could care for two patients without an ALF license as mentioned in the letter. Respondent received the Agency's March 27, 2009, letter on or about April 1, 2009. Within 24 hours after receiving the letter, Respondent sent the Agency an undated written response addressed "To Whom it May Concern." Respondent's written response mentioned that she had discussed with Ms. Endress, the one resident that they "give care to" and that Ms. Endress had advised, "Well legally you can take care of two people without a license." Respondent's written response further reported that a representative from the VA had suggested to several of Respondent's residents that they should move out. Respondent's written response also advised that a number of visits and surveys of St. Francis Place had been conducted in March 2009, by various agencies, including the VA, the Medicaid Fraud Unit from the Florida Attorney General's Office, the Florida Department of Children and Families, and the Agency. The last paragraph of Respondent's written response states: St. Francis Place is a liscenced [sic] non-transient rooming house and the arrangements provided by our business is stated below. The renters residing at St. Francis Place are responsible for their own medications, laundry, and living quarters. As a non-transient rooming house and being in operation for the past six years, we have always encouraged our renters to maintain their own independence. Six of the thirteen renters have their own Florida drivers liscence [sic]. Several of the renters attend school or maintain employment. Several renters perform odd jobs for pay at St. Francis Place, such as yard work, sweeping porches, or taking out trash etc. Monthly Rent includes: three meals a day accessible laundry room transportation upon request utilities garbage service use of telephone cable. On July 21, 2009, surveyors from the Agency once again visited St. Francis Place and observed that G. T. was still residing there and receiving personal services. Sometime after July 21, 2009, the Florida Department of Children and Families moved G. T. from St. Francis Place to a facility known as the "Villas" in an Alzheimer's lock-down unit. The Agency never sought an injunction to force Respondent to cease operating St. Francis Place. There is no evidence that the Agency suggested to Respondent corrective measures or actions that she could take to comply with the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order finding that Respondent Robin Audifredd d/b/a St. Francis Place5/ operated an assisted living facility without a license in violation of section 408.812, but imposing no administrative fine or penalty. DONE AND ENTERED this 6th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2011.
