The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issue in this case is whether the Department of Children and Families (DCF) should fine the Respondent for alleged violations in the operations of two child care centers in Lakeland.
Findings Of Fact The Respondent, Faith Without Works, Inc., d/b/a The Early Years CDC, is licensed by DCF to operate a child care facility at 5100 U.S. Highway 98, North, and at 2933 Duff Road, both in Lakeland. The Respondent's license certificate for the Highway 98 facility is C10PO0696; its license certificate for the Duff Road facility is C10PO0799. The charges in this case pertain to the Highway 98 license, C10PO0696. Late License Renewal The Respondent's annual license for Highway 98 was due to expire on December 14, 2013. On November 4, 2013, the Respondent's principal, Elizabeth Jackson, telephoned DCF on behalf of the Respondent to report that no renewal packet had been received. Normally, DCF sends licensees a renewal packet in time to file a renewal application at least 45 days prior to the license expiration date (i.e., by the filing deadline). The evidence was not clear why the Respondent had not received the packet. The Respondent picked up a renewal packet from DCF and filed its renewal application on November 6, 2013. There was no evidence of an affirmative misrepresentation from an authorized DCF employee that reasonably led the Respondent to delay filing its license renewal application. At best, there was evidence that the Respondent's license renewal application was late in 2011, but that no fine had been assessed. In that year, the Respondent asked DCF in early December as to the whereabouts of the renewal packet and was told that one had been sent on October 27, 2011. The Respondent then reported to DCF that a renewal packet was received on December 10, 2011, four days before expiration of its annual license, but the packet pertained to a different licensee. The Respondent picked up a renewal packet from DCF and filed for renewal. The Respondent was not fined for late renewal that year. Children Left in Van On October 18, 2013, the Respondent's van driver took a four-year-old boy and his one-year-old sister home from the Highway 98 facility. On the way, he stopped at the Duff Road facility to drop off a box lunch. He parked the van in front of the building, very close to the door, went inside briefly, returned to the van to get what he was delivering, and brought the delivery into the building. He then returned to the van and continued on his way to deliver the children to their destinations. During the time he was at the Duff Road facility, the driver left the two children in the van with the engine running. The driver recalled: that the door to the facility was unlocked; that he entered the building the first time just to announce his presence; that the entire delivery process took just 30 seconds; and that the Duff Road facility staff was watching the van from the door the entire time. The Duff Road employee testified that the door was locked; that she interrupted her lunch break to unlock it and hold the door open; and that she was watching the van from the doorway the entire time. An employee of the Early Learning Coalition, who happened to drive up for a scheduled appointment just before the van arrived, testified that she saw no one at the door; that she could see the older child squirming in his seat; and that the children were left alone in the van long enough for her to make her observations, telephone her supervisor, report her observations, and ask what she should do, which probably took considerably longer than 30 seconds. A child protective investigator testified that she learned from interviews with the driver, the older child, and the child's father that the child had a history of removing, or attempting to remove, his seat belt and moving about, or attempting to move about, while in vehicles. However, the evidence was not clear and convincing that the driver, who was a new employee, knew the child's propensities in that regard. During the incident and the investigation on it, the Respondent accepted DCF's expression of concern that the driver's conduct could have resulted in serious harm to the children. The Respondent blamed the incident on the driver being a new employee, who was a school bus driver but was inexperienced transporting preschool children. The Respondent reprimanded the driver and required him to take training in transporting young children. The driver was appropriately remorseful and welcomed the training as being appropriate and helpful. All involved were grateful that no actual harm to the children occurred. In its defense of the charge and during the hearing, the Respondent took the position that there was no serious harm, or threat of serious harm, based on the testimony of the driver and the Duff Road employee. The Respondent attempted to impeach the testimony of the protective investigator, that the driver did not mention the purported supervision by the Duff Road employee during her interview of him, by eliciting that the investigator did not directly ask whether staff was watching from the door. However, in the context of the interview, the driver would have been expected to offer that information had it been true. Overall, the contemporaneous reaction and statements of all involved belie the Respondent's current position and the referenced testimony of its witnesses. It is found that the driver's conduct posed an imminent threat that serious harm could have occurred. The boy could have climbed out of his seat and gotten out of the van, which may not have been detectable by staff standing at the front door to one side of the van, or started playing with the van's gear shift and accelerator, which also may not have been observable from that vantage point, even assuming staff was monitoring the van the entire time. Employee Work History Not Checked The driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked. On July 16, 2012, during a routine DCF inspection, it was revealed that the Respondent had three employees whose work history had not been checked at the time. DCF provided "technical assistance" by telling the Respondent that all employees should have their two-year history checked before starting work, which should be documented. At the time of this earlier violation, DCF gave the Respondent a formal warning stating its intent to take administrative action if further violations of the standard were found. Employee Not Screened On July 19, 2013, the Respondent employed Desaundra Oldfield, who did not have Level 2 screening at the time. In its defense against this charge, the Respondent took the position that Ms. Oldfield was a participant in the Welfare-to-Work Program of Polk Works and was screened through that program. However, it is clear that Ms. Oldfield did not get required Level 2 screening until July 20, 2013. On March 19, 2013, the Respondent was unable to produce documentation that Regina Curtis, who was employed for 30 days and also a parent of a child at the daycare center, had Level 2 screening. The Respondent's defenses at the time of the hearing were that Ms. Curtis was a participant in the Polk Welfare-to- Work Program, and also that she was no longer employed on March 19, 2013, so that on-site documentation was not required. However, the evidence was clear and convincing that Ms. Curtis did not have required Level 2 screening during the time she was working for the Respondent. Non-compliance was noted. Since Ms. Curtis no longer was employed, nothing further was done in the way of technical support. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Inadequate Supervision On June 7, 2013, a DCF inspector responding to an unrelated (and unfounded) complaint observed a single employee in charge of a room of 19 four-year-olds having a party. While the employee's back was turned to help one child in the adjoining bathroom, the other children were jumping off tables and playing with balloons. One parent was in the room with the other children while this was going on, but the parent was not an employee, was not screened, and did not have her work history checked. A balloon burst while in a child's mouth, and the DCF inspector attended to the child to make sure the child did not swallow the burst balloon and choke. On October 26, 2012, a DCF inspector responding to an unrelated (and unfounded) complaint came upon a child in a room by himself. Unnoticed, the child left the room where he was being supervised by an employee of the Respondent to look for candy and was in an adjoining room when seen by the DCF inspector. According to the inspector, when she returned the child, the employee indicated not knowing the child had left. During the hearing, the Respondent asserted that the employee saw the child walk around the DCF inspector, undetected, and enter the adjoining room. The defense was not supported by any competent evidence and was not presented in the Respondent's proposed order. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found. Safety Violation Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This was a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. After the earlier violations, DCF gave technical support; after the second, DCF gave the Respondent a formal warning stating its intent to take administrative action, if further violations of the standard were found. Selective Enforcement Defense The Respondent asserts as an additional defense that it was the victim of selective overzealous and picayune enforcement because of the personal prejudices and animosity of certain DCF personnel for various reasons, including that the Respondent licensed a second facility (at Duff Road) and intended to expand further. The evidence did not prove the alleged prejudice and animosity, or selective enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding the Respondent guilty of the alleged violations and fining the Respondent a total of $475. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Karen I. Meeks, Esquire Meeks, Lewis and Cabrera, P.A. Post Office Box 1598 Bartow, Florida 33831-1598 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17, North Bartow, Florida 33830-7646
Recommendation By reason of the foregoing facts and conclusions of law, it is hereby recommended that the complaint be dismissed in it's entirety. Done and Entered this 26th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Taffer and Jacobs by Jack J. Taffer, Esquire 1700 Northwest 7th Street Miami, Florida 33135
Findings Of Fact Petitioner, Jack D. Osborn (Osborn), a resident of Longwood, Seminole County, Florida, applied to Respondent, Office of the Comptroller, Department of Banking and Finance (Agency), for licensure as a mortgage broker. On the face of the application, and by an attached narrative explanation, he properly revealed that three Department of Professional Regulation (DPR, now Department of Business and Professional Regulation) complaints were pending against his contractor's licenses. The administrative complaint in DPR Case #89-6241 alleges that Osborn received $4,620.00 for construction of an in-ground spa, but abandoned the job. The complaint in Case #90-2647 alleges that Osborn failed to pay suppliers and subcontractors in a pool construction job, resulting in a lien being filed, and he abandoned the job. The complaint in Case #89-12623 alleges that Osborn failed to pay subcontractor DeSilva on several pool construction jobs, failed to complete several jobs, and failed a couple of local building department inspections in the jobs. The three administrative complaints were filed by the DPR in August and September 1990 and all three relate to jobs undertaken by Osborn in 1989. The three complaints allege violations of section 489.129(1)(k), F.S. (abandoning a construction project); section 489.129(1)(j), F.S. (failure to supervise); section 489.129(1)(m), F.S. (fraud, deceit, gross negligence, incompetency or misconduct); section 489.129(1)(h), F.S. (mismanagement or misconduct), and section 489.129(1)(d), F.S. (code violations in work completed). None of the complaints has gone to hearing, or been referred to the Division of Administrative Hearings. All three were still pending as of the date of the hearing in this case. In March 1991, an attorney with DPR sent Osborn's attorney a letter offering a stipulation, subject to approval by the Construction Industry Licensing Board, that the department would dismiss all charges except failure to supervise, in return for a $1,000 fine and probation, should the license be reactivated later. Osborn credibly explains that his business, Bright Water Pools, Inc., was placed in serious financial jeopardy by the embezzlement, over time, of approximately $100,000 by a former bookkeeper employee, Joann Camp. A 106-count Information, dated October 5, 1992, in Eighteen Judicial Circuit case #G88-2709 CFA, State of Florida v. Joann Camp, alleges forgeries and petit and grand theft with the intent to injure or defraud Jack Osborn and various named banks. (See Petitioner's Exhibit #1) The resolution of the criminal case is unknown. The impact on the company was devastating. It was forced to pay bills slowly, causing higher prices for labor and materials; rumors of the firm's financial viability affected sales. In an effort to save the company, Osborn refinanced his home and took out a corporate bank loan for which he is personally liable. The business failed, and the difficulties reflected in the allegations of the DPR complaints are a result of the failure. The sole basis of the agency's intended denial of Osborn's mortgage broker's license application is the pendency of the DPR complaints alleging fraud or dishonest dealing. The agency's procedure is to deny licensure whenever there is such an unresolved complaint. This policy applies without regard to the age of the complaint.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final order granting Jack D. Osborn's application for registration as a mortgage broker. DONE AND ENTERED this 5th day of August, 1994, in Tallahassee, Florida. MARY CLARK 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 Division of Administrative Hearings this 5th day of August, 1994. COPIES FURNISHED: Cassandra A. Evans, Esquire Assistant General Counsel Office of Comptroller Department of Banking & Finance The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jack DeWayne Osborn 303 Pickering Court Longwood, Florida 32779 Honorable Gerald Lewis, Comptroller The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking & Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue Should Petitioner's request for exemption from disqualification pursuant to Section 435.07, Florida Statutes, be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Prior to August 9, 1996, Petitioner was employed by Avon Park Cluster Home in a position that required background screening. At the request of Petitioner's employer, Avon Park Cluster Home, the Department conducted a background check on Petitioner. As a result of this background check, it was determined that there were potentially disqualifying criminal offenses pending against Petitioner in the State of New York and the State of Florida. Because of the lack of information as to the disposition of these potentially disqualifying offenses the Department was unable to complete the background screening on Petitioner. In accordance with Section 435.05(1)(d), Florida Statutes, the Department, by letter dated August 9, 1996, advised Petitioner that it was his responsibility to provide the Department with the necessary documentation to show the disposition of those offenses so that it could complete its background check of Petitioner. By letter dated September 11, 1996, the Department advised Petitioner that since he had not been able to provide the Department with the necessary information as to the disposition of the potentially disqualifying offenses, the Department could make no screening determination and therefore, Petitioner was not eligible for a position requiring background screening. Subsequent to the Department's letter of September 11, 1996, Petitioner furnished certain information concerning the potentially disqualifying offenses. By letter dated October 9, 1996, the Department again advised Petitioner that it was unable to conduct a proper background screening with the information furnished by Petitioner. Therefore, Petitioner was not eligible for a position that required background screening and further advised Petitioner that he could request a hearing to be exempted from this disqualification. Petitioner timely requested a hearing which was afforded to him by the Department. At this hearing, Petitioner was allowed to present evidence to show that he was entitled to be exempted from this disqualification. After hearing Petitioner's evidence, the Department determined that Petitioner had failed to present sufficient evidence to prove that he was entitled to an exemption from disqualification. Petitioner timely requested a hearing under Chapter 120, Florida Statutes. Although Petitioner was given ample time and opportunity to present evidence of the disposition of the potentially disqualifying offenses, he failed to present any evidence of the disposition of those offenses. Likewise, Petitioner failed to present any evidence of rehabilitation or circumstances or evidence indicating that Petitioner would not present a danger if continued employment was allowed as required by Section 435.07(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for exemption from disqualification. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32299-0700 William Brown, pro se 504 West Halmcrae Boulevard Avon Park, Florida 33825 Jack Emory Farley Chief Legal Counsel, District 14 Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030
The Issue The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Robert Burgess (Burgess) was the Santa Rosa County Property Appraiser from 1984 until December 31, 2000. He continues to reside in Santa Rosa County. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004. On April 12, 2004, the day Cooper qualified to run, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this corruptly in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue. Burgess filed his complaint in concert with that of Hilton Kelly, who is the subject of a companion case considered at the same time as this case, but the subject of a separate order, involving alleged favors regarding another property owner. Both complaints were motivated by the desire to impugn Brown's character and the performance of his elected duties, i.e., to injure Browns reputation. The Burgess complaint was fully investigated by the Commission. The investigation revealed that, prior to Burgess' leaving office, a determination to eliminate the tax exemption for the Spiritual Life and Healing Waters Church was made. The investigation revealed that notice that the exemption was eliminated was not provided to the property owner, Grimes. The lack of proper notice occurred during Burgess' tenure in office. Taxes were assessed as a result of this action by Burgess and Brown, and after Brown came into office, Grimes was notified of the pending tax sale of tax liens against her property. Grimes protested, stating that she had not received notice of the assessment of taxes. Brown caused this matter to be investigated by a member of his staff, Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard). Drinkard looked into the matter and determined that notice had not been given, and visited the church where he found pews, religious materials, and a piano. Although services were not being conducted at the time he was there, Drinkard concluded that it was obviously being used as a church. Drinkard determined on November 14, 2003, that the exemption should be re-instated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided. Burgess, as the former Property Appraiser, was uniquely aware of the legal necessities and requirements in granting and removing exemptions. His office failed to provide the required notice to the owner of the elimination of the exemption for property used for religious purposes. During his tenure as Property Appraiser, Burgess had no direct contact with the Spiritual Life and Healing Waters Church regarding the factual basis for removal of the religious tax exemption. Burgess did not examine the public records of his former office to determine the basis for re-instating the exemption. The record reflects that Brown did not write the Department of Revenue about Cooper improperly engaging in campaign activities on state time until February 13, 2004. Burgess knew that determination to re-instate the exemption in question was made on November 14, 2003, and he knew that Brown's letter of complaint to the Department of Revenue regarding Cooper's alleged improper campaigning was on February 13, 2004. Therefore, Brown's alleged motivation in granting the exemption as it might have related to any support for Grimes' support with the Cooper complaint is sequentially impossible. Burgess did make this complaint in concert with the complaint by Kelly for which he provided copies of the records of the Property Appraiser's office. It is clear from the timing that Burgess' motivation was to impugn Brown's reputation. Burgess lacked a factual predicate to assert that Brown's re-instating the religious exemption was done corruptly, was done to improperly influence Grimes and in return for her political support, or to garner her support for Brown's complaint against Cooper. Affidavits were presented in support of attorney fees and costs, and their reasonableness. The Proposed Recommended Order restated those amounts as 94.4 hours at a rate of $175 per hour. The total provided in the Proposed Order was $17,079.50; however, 94.4 times $175 equals $16,250. If one considers that the difference is attributable to law clerks, if one subtracts $16,250 from $17,079, the balance of $559.46, which divided by 8.1 hours for clerks, equals $69.06 per hour for law clerks, which is a reasonable rate. The costs incurred by the attorneys in defending the action and presenting this case were $5,366.56, which are reasonable.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $17,079.50 in attorneys' fees and $5,366.56 in costs. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2006. COPIES FURNISHED: Albert T. Gimbel, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Joseph Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Kaye Starling, Agency Clerk Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
