The Issue Whether the Order of Fine was properly imposed.
Findings Of Fact The Watsons admit that they placed a large amount of fill dirt on their property. The property upon which the fill was placed is a vacant lot (Lot 13) that is contiguous to the property upon which the Watsons reside. The Watsons also admit that they did not obtain a permit from Lake County that authorized them to place the fill dirt on Lot 13. Lake County Code Enforcement Special Master Charles Johnson issued an Order of Enforcement on September 14, 2007, which required the Watsons to remove the fill dirt or to obtain a “proper permit” within 14 days. The Watsons appealed the Order of Enforcement to the circuit court, which remanded the case to the Special Master to allow the parties an opportunity to file written memoranda in support of their positions. Following the remanded an identical Order of Enforcement was issued by the Special Master on May 10, 2008. The Watsons did not want to remove the fill dirt. Therefore, after the 2007 Order of Enforcement was issued, Mr. Watson contacted Lake County staff to obtain a permit. Mr. Watson said he spoke to Jennifer Meyers, the development processing coordinator in the Public Works Department to obtain a permit for lot grading, but she told him that department only issued development orders for subdivisions. Mr. Watson spoke to Carmen Carroll in the Building Services Division about obtaining a building permit for lot grading. She told him the County did not issue building permits for lot grading. Ms. Carroll stated at the hearing that her division had never issued a building permit for lot grading, alone. Lot grading is often involved in a building permit, but only as a part of a proposal to construct a building. Mr. Watson said he arranged in September 2007 to meet on site with an engineer from the Public Works Department, but the engineer cancelled the meeting without an explanation. Mr. Watson claims that Lake County thwarted his efforts to obtain the proper permit for the fill dirt through the failure of its employees to tell him what permit to get. Lake County bears some responsibility for the confusion that existed about the "proper permit" that was needed. However, the Watsons' efforts to obtain a permit fell short of reasonable. Mr. Watson says he told the Lake County employees he needed a permit to satisfy the Order of Enforcement, but his testimony on this point was vague. It was not made clear that all of these County employees understood the circumstances of the Order of Enforcement and the daily fine the Watsons were facing. There is no evidence that Mr. Watson, when confronted with the responses from Ms. Meyers and Ms. Carroll, requested to speak to their supervisors or asked them to contact the County Attorney's office so that the issue could be resolved. There is no evidence that the Watsons sought information about the proper permit from the code enforcement staff of the County. There is no evidence that Mr. Watson contacted the Lake County Attorney's office until many months later. Mr. Watson said that after the 2008 Order of Enforcement was issued, he saw no purpose in speaking again with Lake County staff about obtaining a permit because he thought it would be a waste of time. That was not reasonable behavior. It was not reasonable for the Watsons to let daily fines accumulate for months because they were frustrated by the statements made by some County employees. Furthermore, the Watsons' attorney, Allison Strange, immediately began settlement negotiations with the County's legal staff in which the parties contemplated Lake County's issuance of a permit in a couple of weeks. The Watsons put an end to those discussions when they refused to provide engineering support for their lot grading proposal. The County was concerned about a steep slope on the northwest part of Lot 13 and fill dirt in the drainage easement. The Watsons proposed to install a retaining wall called a “Sierra Slope System.” Mr. Watson claimed that the proposal was “rejected” by the County, but the County simply told the Watsons that the proposal would have to be submitted by a licensed engineer in order to be evaluated. That was a reasonable request, but Mr. Watson did not want to spend the money for an engineer. The Watsons never applied for a permit for the fill dirt before the Order of Fine was issued. Taking all of the relevant evidence into account, it is found that the Watsons were not prevented by Lake County from obtaining a permit for the fill dirt. A claim not raised by the Watsons until the hearing in this appeal is that they do not owe any fines because Lake County abated the daily fines during settlement negotiations in May 2008 and the abatement was never lifted. On May 22, 2008, Ms. Strange sent a letter to Assistant County Attorney LeChea Parsons indicating their agreement about abating the fines: I appreciate your agreement to abate the issuance of any fines against Mr. and Mrs. Watson until Lake County has had adequate time to perform its inspections and issue the development order or permit, as ordered by the Special Master. Per our discussion this morning, it seems that Tuesday, June 10, 2008 would provide sufficient time and that no fine would accrue prior to then. The parties agree that one purpose of the May 2008 letter was to try to resolve the matter before the Watsons' deadline for filing an appeal of the Order of Enforcement. A Lake County employee made an inspection of Lot 13 and the County told the Watsons, through their attorney, Ms. Strange, of the County's concerns about the existing grading. The Watsons responded with their proposal for the Sierra Slope System. However, when the Watsons refused to submit their proposal through an engineer the negotiations broke down and the Watsons filed the appeal. The County contends that it only agreed to abate the fines until June 10, 2008. The fact that the Watsons did not raise the issue of the abatement until the hearing in this case suggests that at the time of the settlement negotiations in 2008, the Watsons did not think the fines had been abated beyond June 10, 2008. Taking all the relevant record evidence into account, the most reasonable meaning to ascribe to the parties' representations and actions is that the abatement of fines was to last until June 10, 2008, because that was considered sufficient time to get a permit and was the last day to settle the dispute before an appeal was filed. When the Watsons refused to submit engineering plans and filed the appeal, the negotiations were terminated and so was the abatement of fines. The County claims that because the Watsons never came into compliance with the Order of Enforcement, the offer of the abatement of fines had no effect. However, just because the negotiations were unsuccessful does not void the period of abatement. The fines were abated from May 27, 2008 (the deadline for compliance set out in the Order of Enforcement) through June 10, 2008, a period of 15 days. It does not appear from the record that the Watsons had further contact with Lake County officials about obtaining a permit until October 2009. During this period, the parties were in litigation over the Order of Enforcement. In an email dated October 15, 2009, Mr. Watson asked Ms. Marsh to tell him what “proper permit” he needed. Ms. Marsh replied that the proper permit would be a building permit. Even after being so informed, Mr. Watson still did not apply for a building permit. On September 14, 2009, the Watsons' property was inspected by Lake County Code Enforcement Inspector Jessica Jorge who observed that the fill had not been removed. An Affidavit of Non-Compliance was prepared, but it does not appear from the record that it was referred to the Special Master. On April 22, 2010, Ms. Jorge inspected the property again and she observed that the fill had still not been removed. Ms. Jorge checked the records of the County and determined that no permit had been issued for the fill. Ms. Jorge executed an Affidavit of Non-Compliance, which was presented to Special Master Johnson. On May 12, 2010, Special Master Johnson, without a hearing, entered the Order of Fine. He ordered the Watsons to pay a fine for non-compliance during the period from May 27, 2008 (the deadline for compliance) through April 22, 2010 (the date of inspection), which is 695 days, at the rate of $50.00 per day, plus the $500 fine assessed in the Order of Enforcement. The total fine imposed was $35,250. Lake County Code of Ordinances Section 8-10(a)(2) sets out factors the Special Master is to consider in determining the amount of the daily fine: In determining the amount of the fine, if any, the special master shall consider the following factors: The gravity of the violation; Any actions taken by the violator to correct the violation; Any previous violations committed by the violator. Special Master Johnson could not remember whether he applied these factors before issuing the Order of Fine. The factors will be considered now. The gravity of the violation is not great. There was no evidence presented of actual harm done to neighboring properties and no evidence that there were complaints from neighbors. The potential for erosion and drainage issues existed, but the County did not show that actual problems occurred or that the potential for harm was significant. The actions taken by the Watsons to correct the noncompliance have been discussed above. The Watsons made efforts to comply, but stopped short of reasonable efforts because they did not submit any kind of permit application and were not willing to employ an engineer to produce a grading plan. The Watsons claim they could have complied with the Order of Enforcement by getting approval for a lot grading plan under an new ordinance, but Lake County prevented them from doing so. In September 2008, the Lake County Code was amended to add procedures for approving lot grading plans. The Watsons were not aware of the new ordinance when it was adopted. The County did not inform them that about the new ordinance. Ms. Marsh said she did not inform Mr. Watson because she was unaware of the new ordinance. The record does not show when the Watsons learned about the new ordinance, but it was after the Order of Fine was issued. When the Watsons learned about the new ordinance, they submitted a Lot Grading Plan in October 2011. The plan was prepared by a licensed engineer. The Watsons' Lot Grading Plan was approved by the County on January 10, 2012. On that date, the Watsons finally came into compliance with the Order of Enforcement. Although the County's failure to inform the Watsons is relevant to the mitigation of fines, it does not excuse the Watsons' failure to apply for a permit for the fill dirt. If they had applied for a permit, the new ordinance would likely have been used by the County. The Watsons also claim they were misled by the County to believe that they did not need to obtain a permit for the fill until they were ready to build a house on the property. However, that representation was part of a settlement proposal which would have required the Watsons to terminate their lawsuits. The Watsons did not terminate their lawsuits, so it is unreasonable for the Watsons to rely on the County’s representation. It appears that the Watsons, convinced that the Order of Enforcement was wrong, were not willing to expend the money necessary to get a permit. In addition, obtaining a permit would have undermined their argument in the ongoing litigation over the Order of Enforcement that no permit was needed. There was no evidence presented regarding previous code violations by the Watsons. Section 8-10(a)(2) allows for as daily fine up to $1,000.00 per day. Special Master Johnson set the daily fine at the very low end of this range. Taking the factors into account, $50.00 a day is a reasonable daily fine amount.1/
The Issue There were four cited violations: Failure to keep daily medical administration records. Failure to document monthly fire drills. Violation of fire code by having bolts and chains on front and back door. Violation of fire code by having a door in a resident's room blocked by the resident's bed. Lauchner admitted these facts and DHRS proved the facts of allegations. However, there is an issue of law regarding whether all or part of the fire code violations apply to an ACLF which has less than three residents. Neither party filed proposed findings although DHRS filed copies of the applicable rules as a late filed exhibit and Ms. Lauchner filed a letter which contained her arguments but no proposed facts.
Findings Of Fact Mildred Lauchner is licensed by DHRS to operate Lauchner ACLF. This facility is licensed for three residents but it has never had more than two residents at one time. Mildred Lauchner is a mature white female who has worked at hospitals and nursing homes as an aide. She has operated an ACLF for several years and has a good general reputation with DHRS. She does this primarily alone with the assistance of a cleaning person who comes several times per week. Ms. Lauchner exhibited confusion about the sequence of events which lead to these fines being levied. Residents at the Lauchner ACLF are primarily elderly bed-ridden persons who do not need nursing care. On January 29, 1985 an inspection was conducted of Lauchner ACLF by DHRS. A copy of the inspection report was introduced as PEX 1. This inspection revealed various Class III deficiencies. A copy of this report was presented to Mildred Lauchner on February 23, 1985. She had 30 days to correct the deficiencies from the date of the deficiencies. On March 22, 1985 Lauchner ACLF was inspected. Four of the deficiencies were not corrected. Daily medication records were not being kept as required, there was no documentation of monthly fire drills, locks were on exit doors and a bed in a bedroom blocked an outside door. On May 22, 1985 the Lauchner ACLF was reinspected. Of the deficiencies previously noted in paragraph 5 above, the monthly fire drills had been documented and one of the exit doors had been brought into compliance with the life safety code. Lauchner ACLF had at least three exterior doors: a front door, a back door and door to the outside of the house in a bedroom. On June 4, 1985 the DHRS served an administrative complaint on Mildred Lauchner seeking to impose a total fine of $700.00 broken down as follows: $150.00 failure to keep daily medical administration records. $100.00 failure to document fire drills. $250.00 failure to have only simple locks on exit doors and having bolts or chains on such doors. $200.00 blocking an "exit" door in a bedroom.
Recommendation Having found that Lauchner ACLF was in violation of 10A- 5.24(1)(a)(3), Florida Administrative Code, it is recommended that the civil penalty of $150.00 be levied against Mildred Lauchner, the licensed operator. DONE AND ORDERED this 14th day of February 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February 1986. COPIES FURNISHED: David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Steve Huss, Esquire General Counsel Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 Carol Wind, Esquire District V Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Mildred Lauchner Lauchner ACLF 404 Madison Avenue North Clearwater, Florida 33515
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner and retaliating against him because he complained of racial discrimination.
Findings Of Fact Rogers' claim of racial discrimination in treatment is not supported by the evidence. His claim of a disparity in pay is supported by the fact that the three other shift managers who are not African-Americans earned more than he. In response, however, Calder showed legitimate differences in the qualifications and responsibilities of the shift managers, and that higher compensation for the other three was justified. Circumstantial evidence from which one could draw an inference of retaliatory intent consists of Lang's email and Kaminski's statement that his job was in jeopardy and the email did not help. But Lang's email also addressed legitimate business concerns. In the end, it was his unwillingness to act as a supervisor that caused Rogers to be demoted. (He was fired for insubordination on December 17, 2009, by Otero, the same person who had hired and promoted him.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by Petitioner in this case. DONE AND ENTERED this 23rd day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 23rd day of December, 2010.
