Findings Of Fact The Respondent, Lori Engelleiter, advertised in the Island Trader, a local shopper publication, and in the newspaper, holding herself out to provide regular care for the elderly, the handicapped and the retarded in her private home for unspecified monthly rates. In response to these advertisements, at least two individuals were taken into the Respondent's home for care, as arranged by relatives of these clients. The Respondent provided regular personal care for not more than three residents at a time. This personal care consisted of housing, meals, help with bathing, and with dressing and changing clothes. In the cases of the two clients of the Respondent whose stays at the facility were detailed at the hearing, the personal care was provided by the Respondent for a period of three weeks in one instance, and for more than four weeks in the other instance.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the Respondent is guilty of operating an Adult congregate Living Facility without a license, and imposing a fine of $500 as penalty therefor. THIS RECOMMENDED ORDER entered this 12 day of April, 1984. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1984. COPIES FURNISHED: Douglas E. Whitney, Esquire 400 East Robinson Street Suite 911 Orlando, Florida 32801 Lori Engelleiter Post Office Box 24 Melbourne Beach, Florida 32951 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Jules Montouri is a retarded adult. Rahya Montouri is his mother. Prior to March, 1980, Jules Montouri resided at a facility maintained by the Department of Health and Rehabilitative Services in Gainesville, Florida. Jules Montouri's mental capacity is retarded to an extent that he will never be able to completely care for himself and meet his own needs. He can, however, with proper training become capable of living a somewhat normal life with minimal supervision. Since March, 1980, Jules Montouri has resided at "Hillcrest House." Hillcrest House is an adult group residential facility maintained by the Provider, Sheltered Community Residence, Inc. The Provider is under contract with the Department of Health and Rehabilitative Services to provide a residential educational setting for retarded adult males. The concept of the program offered by the Provider is to move clients out of heavily restricted institutional environments into less restrictive ones. The program is designed to train clients to meet as many of their own needs as they can, and to gradually move them into less and less restrictive living situations. The Provider has sought to teach Jules Montouri to live in harmony in a minimally supervised environment, and to do his own cleaning and cooking. The Provider's goal with respect to Jules Montouri would be to move him into an apartment-type living facility with several other retarded adult males with a minimal degree of supervision. The Provider's program is an appropriate one for Jules Montouri. Except for problems that have developed between the Provider and Rahya Montouri, the program offered by the Provider would have a reasonable prospect of successfully training Jules Montouri to live in a substantially independent manner. Rahya Montouri disagrees with the goal of the Provider's program to steer Jules Montouri toward a level of substantial independence. She has objected to programs designed to train Jules Montouri for marginal employment, and to programs designed to teach him how to cook for himself. While Rahya Montouri maintains that she wants her son to remain as a resident in the Hillcrest House facility, she has found very little but fault with the program. Since Jules Montouri has been a client of the Provider, Rahya Montouri has complained on a constant basis about virtually every aspect of the Provider's program. She visits her son often at the facility, and has complained verbally to staff members on virtually every visit. She has made many complaints through telephone conversations with members of the staff. She has written numerous letters to complain about the facility, the program, other clients, and the staff. For example, she has expressed suspicion that her son has engaged in homosexual conduct and has implied that members of the staff may have been involved. These suspicions and accusations appear to have been based upon no evidence whatever. Mrs. Montouri's antagonistic attitude toward the Provider's program has become disruptive to the program. The Provider's staff at the Hillcrest facility has spent from five to ten hours per week since Jules Montouri has been a client dealing with complaints from Mrs. Montouri. On at least two occasions, Mrs. Montouri has violated the rights of other clients at the facility by going through their belongings looking for items that she asserted had been taken from her son. Mrs. Montouri's antagonism toward the program has affected the ability of Jules Montouri to participate in it. Jules is caught in the unfortunate cross fire between the program and his mother. As can be expected, it has confused him considerably. Recently, he has told several of the Provider's staff members and social workers from the Department of Health and Rehabilitative Services that he wishes to leave the program. Mrs. Montouri has complained to the Human Rights Advocacy Committee for Retardation. This committee is a group of volunteers who serve to investigate potential emotional, psychological, or sexual abuse of clients. Mrs. Montouri's complaints have resulted in investigations by the Human Rights Advocacy Committee of the Provider's program. The investigations have not revealed any instances of actual abuse. The investigations have, however, had a demoralizing effect upon the staff of the Provider's program, and could seriously damage the program's reputation. Mrs. Montouri's antagonistic attitude toward the Provider's program has become abusive. The time that the Provider's staff has had to devote to her complaints is unjustified. Her antagonistic attitude has rendered it difficult for her son to progress in the program. Her complaints have demoralized the program's staff and could eventually injure the program's reputation. While the program offered by the Provider is an appropriate one for Jules Montouri and could serve to prepare him to live the most normal life possible for him, it is not practical that he continue in the program.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Retirement Life Center, Inc., is licensed to operate Inverrary Retirement Center Annex at 5640 N.W. 28th Street, Lauderhill, Florida as an adult congregate living facility in compliance with Chapter 400, Part II, Florida Statutes. On October 27, 1985, at approximately 11:46 a.m. the Broward County Emergency Services received a call in reference to a person bleeding from the mouth at Inverrary Retirement Center Annex. Two paramedics with Broward County Emergency Services responded to the call and immediately went to the Respondent's adult congregate living facility. Upon arrival, the paramedics went to the fence but were unable to enter the premises because a locked padlock was on the gate. There were no staff members from the facility waiting for the emergency unit. The paramedics yelled out and rang a bell in an attempt to get someone to unlock the gate. One female staff member went to the gate, but she did not have a key so she left to get someone else. At least two minutes were wasted while the paramedics attempted to gain entry into the facility. When the gate was finally unlocked, the paramedics found the victim prone on the floor of the cafeteria, cyanotic and in cardiopulmonary arrest. The Respondent had previously performed an administrative inspection of Inverrary Retirement Center Annex on February 22, 1985. At that time, one of the deficiencies cited included the fact that locks were on the fence gate. When the facility was re-inspected on June 11, 1985, the deficiency had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered assessing an administrative fine of $500.00 against Retirement Life Center, Inc., d/b/a Inverrary Retirement Center Annex. DONE and ORDERED this 8th day of May, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4214 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law section. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 7. Rejected as a recitation of testimony and/or contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Findings of Fact 3, 4 and 5. Adopted in Finding of Fact 7. COPIES FURNISHED: Dr. Martin Marenos Inverrary Retirement Center Annex 2057 North University Drive Sunrise, Florida 33322 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Suite 210 Miami, Florida 33014 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times relevant hereto Bayview Superior Retirement Home (Bayview or Respondent) was licensed by Petitioner as an Adult Congregate Living Facility. At the time of this hearing there were ten residents at Bayview. These residents ranged in age from about 60 upward. Several of these residents are senile or partly so; and many are incapable of taking care of their personal needs such as taking their medication, bathing and dressing themselves, visiting their doctors' offices, or going out of Bayview unescorted. Jenny D. is a resident at Bayview. She easily becomes disoriented and has a propensity for wandering to other residents' rooms and for leaving the facility and walking downtown. On several occasions Jenny D. was picked up by the police walking on the street in heavy traffic and was unable to give her name or where she lived. To deter this practice, and at the prodding of Petitioner, Bayview installed a door alarm system to alert the attendants on duty of a resident's attempt to slip out for any reason. On only one occasion since the installation of this alarm was Jenny D. successful in slipping away and having to be returned by the police or be picked up by someone from Bayview and brought back. On July 6, 1983, approximately one week following one of Jenny D.'s sojourns from Bayview, Rebecca Falzone, a licensed specialist for Petitioner, visited Bayview to inspect the home and records. A review of Jenny D.'s record did not reveal an incident report on Jenny D.'s escapade the previous week. At the time of this visit the Administrator, Gordon Groundwater, was not present. Groundwater had prepared the incident report but had removed the handwritten copy from the file to be typed. A copy of the incident report was submitted as Exhibit 8. On or about June 15, 1983, after going to bed, Jenny D. got out of bed and wandered to other residents' rooms until she was taken back to her bed by an attendant. Jenny D. resisted the efforts to put her into bed and she had to be restrained to get her back to bed. This consisted first of holding Jenny D.'s arms then placing her in a jacket-type restraint to keep her in bed until she settled down. During this restraining process, Jenny D. suffered bruises on her arms (Exhibit 2). Terry Orme worked as a handyman at Bayview from July to mid-September, 1983, at which time he was fired. Orme occupied an apartment owned by Bayview as part of his compensation for his services. Upon being terminated, he was told to vacate the apartment, but did not leave until evicted by court order in October. After his termination, Orme reported to Respondent an incident involving one resident who had nearly choked on a nylon hose put on her hands and arms to deter the resident from sucking her fingers. In sucking her fingers through the hose, she sucked part of the hose down her throat. Orme also testified that he put chains on doors to keep residents from wandering into other residents' rooms. On one occasion during a visit to Bayview by Frederick Timmerman, M.D., who serves on the Ombudsman Council with Bayview as his responsibility, no menu was posted. Dr. Timmerman attempted to talk to the residents at Bayview but got no intelligent answers from any of them. On another occasion during a visit to Bayview by one of Petitioner's employees, the posted menu had not been changed to correspond with the meal being served. Gail Silva worked at Bayview on Saturday, August 27, 1983, from 7:00 a.m. until 4:36 p.m. She was hired by Mrs. Siess and at 4:36 p.m. when Mrs. Siess returned to Bayview Mrs. Silva quit, quite angry because she had told Mrs. Siess she needed to leave at 3:00 p.m. to take care of her young children, and Mrs. Siess was not present to relieve her at that time. Upon reporting for work that Saturday morning, Mrs. Silva was taken on rounds by Mrs. Siess. They went to a room occupied by Hanna, an incontinent resident who was taken to the bathroom and hosed down by Mrs. Siess. Liquid detergent was used by Mrs. Siess to wash the resident's genital area. No full bath was administered. Later that day Mrs. Silva bathed another resident who had diarrhea and was wearing Pampers diapers and loose underwear. A bathing schedule was posted but Mrs. Silva did not know if anyone was scheduled for a bath the one day she worked. Mrs. Silva also observed Mrs. Siess give medications to some residents. For some, she put the pill in a bowl and provided them with water to wash down the pill. For one resident, Mrs. Siess put the medication in some pudding which was given to the resident. Mrs. Silva also testified that one resident had an infected foot, on which Silva cut out an ingrown toenail; that she cut the fingernails of several residents; that she assembled them in the afternoon to discuss recreation with them and several requested music and dancing; that no recreation activities such as radio, group games, etc., were provided; that the t.v. provided was a pastime and not an activity; and that Mrs. Siess asked her if she knew how to change a catheter. Mrs. Silva's medical education consists of a course in home health training which she took from a nursing agency, but she has done volunteer health work in the past. She knew that only a licensed nurse is authorized to change a catheter and was offended at being asked if she knew how to change one. During an evening visit to Bayview by Mrs. Falzone, residents told Mrs. Falzone around 9:00 p.m. that they were hungry. The evening meal had been served at 5:00 p.m. and breakfast was scheduled at 8:00 a.m. the next morning, more than 14 hours after the dinner meal. The medicine chest in which medications are stored is a metal box which opens from the top. There is no handle on the door (top) of this chest, and on several occasions when inspectors were at Bayview the chest was not locked. The chest was kept in the kitchen, to which residents were barred, and either a knife or screwdriver was needed to open the unlocked chest. Even with the key, it is difficult to open the chest without applying the levering effect of a knife or screwdriver to lift the door of the chest on its hinges. All witnesses agreed that few, if any, residents had the dexterity to open the unlocked medicine chest; that the residents did not have access to the chest located in the kitchen; and that a large percentage of these residents could not take their medications unaided, but needed to be given their proper medications by one dispensing the medications to them. Considerable evidence was submitted that many of the residents at Bayview were unable to safely leave the facility without close supervision; and that Jenny D. "walked away" on numerous occasions before the door alarm system was installed, and one time after it was installed. Respondent is also charged with having doors locked and wired shut to keep residents from surreptitiously leaving the facility and thereby subjecting themselves to danger. The evidence in this regard was contradictory, with one witness testifying the one day she worked at the facility one outside door was wired shut, while the Administrator of the facility categorically denied any door was so wired. Since neither of these witnesses' testimony is deemed more credible than the other, the evidence on this charge is in equipoise. Terry Orme also testified that on one occasion he, at the request of Mrs. Siess, signed a name to a contract as sponsor, thereby forging the signature. A copy of this contract was not produced and no other evidence regarding this incident was presented. However, Orme's testimony in this regard was not contradicted. Residents of Bayview Superior Retirement Home are happy at the facility and their relatives are satisfied with the facility and the care given to these residents. Several relatives of residents at Bayview phoned and wrote to the Ombudsman responsible for this facility complaining about having to move their relatives from this facility.
The Issue Did Respondent, Homewood Suites Hilton (Homewood) located at 16450 Corporate Commerce Way, Fort Myers, Florida, discriminate in provision of public accommodation to Petitioner, Justo Lopez, on account of his race or ethnicity in violation of section 760.08, Florida Statutes (2019)?1 1 All references to the Florida Statutes are to the 2019 compilation unless noted otherwise.
Findings Of Fact Mr. Lopez is a disabled Navy veteran. Mr. Lopez had stayed at Homewood before the events at issue here. On August 3 and 4, 2019, Mr. Lopez was a guest of Homewood. He was there with his wife and four- year-old grandchild. That afternoon Mr. Lopez was doing laundry in the hotel laundry room. He was using both dryers for his clothes. His clothes were drying slowly. While Mr. Lopez was in the laundry room, Deborah Borchart, a Caucasian woman, washed her clothes. Mr. Lopez left the room planning to return later to check on his clothes. Mr. Lopez received a call from the desk clerk telling him another guest wanted to use the dryers. That guest was Ms. Borchart. Mr. Lopez explained that the clothes were drying slowly and needed another half hour. A little later the desk clerk called again about Ms. Borchart wanting to use the dryers. Mr. Lopez returned to check on his clothes. The clothes were not dry. He added coins to the dryer. He told Ms. Borchart that the clothes were not dry and that there would be a wait. Ms. Borchart began yelling and cursing at him, shouting that he was not the only person in the hotel. Mr. Lopez asked her to wait and said that he too was entitled to use the dryers. "Why are you using both dryers?" she asked. She said: "Everybody needs to use the dryers. Take your stuff out or I will call the police." Mr. Lopez removed lint from the dryers to speed up the drying process. He emptied the lint in the garbage can. Mr. Lopez passed within two or three feet of Ms. Borchart to throw the lint away. He did not push Ms. Borchart or step on her foot. After leaving the laundry room, Mr. Lopez told the desk clerk of Ms. Borchart's verbal abuse and threat to call the police. There is no evidence that the desk clerk reported this to the manager, Deborah Clark, who was not on site. After ten or 15 minutes, Mr. Lopez returned to the laundry room to check on his clothes. Ms. Borchart again cursed him, complained about him using the dryers, and threatened to call the police. Mr. Lopez removed his clothes although they were still damp. When he left, he told Ms. Borchart, "Sorry for any inconvenience." He put the clothes in his room. Then he left with his wife and grandchild to find a place to eat. During all of these encounters, Mr. Lopez and Ms. Borchart were the only people in the laundry room. Ms. Borchart told the desk clerk that Mr. Lopez yelled at her, stepped on her foot, and shoved her. Ms. Borchart asked the clerk to call the police. Mr. Lopez did not shove Ms. Borchart or stamp on her foot. Homewood attempted to support Ms. Borchart's reported account of events with hearsay that was not admissible pursuant to a proven hearsay exception and did not corroborate any admissible adverse evidence. The desk clerk called Ms. Clark to report Ms. Borchart's complaint and her demand for a call to law enforcement. Ms. Clark directed the clerk to contact law enforcement and transfer her to the laundry room telephone so she could speak to Ms. Borchart. Ms. Clark did not attempt to speak to Mr. Lopez. The desk clerk called law enforcement for Ms. Borchart. Two deputy sheriffs responded. While Mr. Lopez and his family were looking for a place to eat, a deputy called him and asked where he was. Mr. Lopez told the deputy that he was with his family looking for a place to eat. The deputy called again asking when he would return. The deputy said he and a colleague were at the hotel waiting for Mr. Lopez. Mr. Lopez and his family returned to the hotel to speak with the deputies. One deputy spoke to Mr. Lopez. The other spoke to his wife. The deputies also spoke to employees of Homewood. The deputies did not arrest Mr. Lopez or bring charges against him. Their report of the incident questions the credibility of Ms. Borchart and notes that her foot was not injured. It concludes that "probable cause for an arrest could not be developed for this incident." Ms. Clark claimed she did not know Mr. Lopez's ethnicity. However, Ms. Clark knew Mr. Lopez from previous stays at Homewood. She had met him twice before. These interactions gave her an opportunity to see and hear him. She knew that he was both African American and Hispanic. Mr. Lopez's race is apparent when you look at him. His surname and accent reveal his Hispanic heritage. Ms. Clark's testimony that she did not know Mr. Lopez's ethnicity is not credible, and a factor undermining her credibility in general.2 Ms. Clark directed Homewood employees to evict Mr. Lopez and enlisted assistance from law enforcement. She based this decision solely on 2 Disbelief of the explanation for the alleged discriminatory act accompanied by a suspicion of mendacity permits the trier of fact to infer the ultimate fact of intentional discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). Ms. Borchart's description of events, either statements made directly to Ms. Clark or statements to Homewood employees. The employees were not present in the laundry room and could only report what Ms. Borchart told them. After interviewing employees, Ms. Borchart, Mr. Lopez, and motel employees to whom Ms. Borchart had talked, a deputy advised Ms. Clark of the conclusion that a crime had not occurred and there was no probable cause for an arrest. It is reasonable to infer that the deputy relayed the observations and conclusions memorialized in an Incident Report, including that Ms. Borchart had no injury, that her statements were inconsistent, that her statements omitted information, and that neither she nor the desk clerk disclosed Mr. Lopez's earlier complaint to the desk clerk about Ms. Borchart's verbal abuse. Nonetheless, Ms. Clark directed the desk clerk to evict Mr. Lopez and his family and ask the deputies to escort them out. Mr. Lopez asked to speak to Ms. Clark. His request was not granted. There is no explanation why Ms. Clark did not speak to Mr. Lopez. Mr. Lopez and Ms. Borchart were similarly situated. Both were guests of Homewood. Both were using the motel's laundry facility. Both complained of the other being abusive. Homewood treated Mr. Lopez differently and worse than it treated Ms. Borchart. Ms. Clark relied solely upon Ms. Borchart's account of events, as recounted by Ms. Borchart or as relayed by Homewood employees. The record offers no explanation why Ms. Clark did not speak to Mr. Lopez. The evidence does not prove why Ms. Clark evicted Mr. Lopez, an African American Hispanic, paying, repeat guest and his family solely upon the statement of a Caucasian female without speaking to the African American Hispanic guest. The totality of the circumstances, the demeanor of the witnesses, and the lack of a persuasive explanation for the decision to evict Mr. Lopez's family without speaking to him reasonably support an inference that the decision was the result of bias against Mr. Lopez on account of his race, ethnicity or both. At Homewood's request, a deputy escorted Mr. Lopez, his wife, and his grandchild to their fifth floor room to gather their belongings. The family was given ten minutes to accomplish this. The officers then escorted the Lopez family to their car on a rainy night. Mr. Lopez begged the employees to permit them to stay the night. They said they were required to comply with Ms. Clark's instruction. During all these events, each time Mr. Lopez and his family passed near the lobby Ms. Borchart, laughing loudly, watched them. A few weeks later, in response to a complaint from Mr. Lopez, Homewood refunded Mr. Lopez's payment for the August 4, 2019, stay.
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 granting Mr. Lopez's Petition for Relief and prohibiting Respondent, Homewood Suites, Hilton, from discriminating against Mr. Lopez or any other Hispanic or African American guest in the terms and conditions of lodging there including, but not limited to, accommodations, and guest privileges. DONE AND ENTERED this 18th day of August, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Justo Lopez Post Office Box 6845 Ithica, New York 14851-6845 (eServed) Stacey M. Bosch, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 1 North Dale Mabry Highway Tampa, Florida 33609 (eServed) Richard B. Mangan, Jr., Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 1 North Dale Mabry Highway 11th Floor Tampa, Florida 33609 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue presented is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents have been licensed by Petitioner to operate a foster home since August 1994. At all times material hereto, Mercedes and Topacio Hernandez were foster children who resided in Respondents' home. Mercedes was born on October 3, 1986, and Topacio was born on August 31, 1988. On March 1, 1996, Darlise Baron, a protective investigator for Petitioner, picked up Mercedes and Topacio from school and took them home. When she picked them up, they and their clothes were dirty. When they arrived at Respondents' home, Baron allowed the girls to play outside in the dirt while she waited for a Spanish-speaking police officer to arrive to assist her with her investigation. After Baron and the police officer entered Respondents' home, Baron inspected the kitchen area. The refrigerator contained "hardly any food", and the cabinets contained only a "couple of cans of vegetables." Respondent Ana Diaz explained to Baron that the girls received their breakfasts and lunches at school and the family had their evening meals catered. Baron noted that Mercedes was "average weight" and Topacio was "small for her weight". It is assumed from Baron's description that Topacio was overweight. Baron noticed a slide lock on the outside of the girls' bedroom door. The lock was the type where one merely raises the knob and slides the lock over. The lock was not a "dead bolt" lock. What Baron did not notice was that there were such slide locks on the outside of all the bedroom doors in Respondents' home. The purpose of the locks was to prevent Respondents' granddaughter from entering any of the bedrooms unattended. That toddler was the child of Respondents' daughter who also resided with Respondents. Baron determined that Mercedes and Topacio were not in immediate danger. She determined that the children did not need to be removed from Respondents' home. On March 4, 1996, Brenda Boston, a foster care unit supervisor for Petitioner, visited Respondents' home. She checked the sheets on the girls' bed: the top sheet was clean but the bottom sheet was soiled. In her view, the girls' bedroom was untidy because there were some packed boxes in the room. Boston checked the refrigerator and found it empty but there was a box of food in the freezer. The cupboards were also empty. Respondent Ana Diaz explained that their food was catered and showed Boston containers of warm food on the kitchen counter. There were no snacks available for the girls at that time. While Boston was there, she observed the interaction among Mercedes, Topacio, and Respondents and found it to be good. She determined that the foster children were not in any immediate danger and left them in Respondents' home. Lee C. Hickey is a social worker who has been the case manager for Mercedes and Topacio since December 1995. She sees the girls on a weekly basis, at home, at school, or in therapy. She has observed the interaction among them and the other students and the interaction among them and Respondent Ana Diaz and has found those interactions to be positive. Although she testified that there were no books in the Diaz foster home for the girls to read, she did not testify as to when that situation occurred and for how long that situation continued to exist. She did testify, however, that Topacio was in the second grade at the time and could not read. On March 26, 1996, Carol Rodriguez, a counselor employed by Petitioner, visited the Diaz foster home. She observed the children's room to be neat. Although she noticed the slide lock on the bedroom door, she did not question its presence. During that visit, Respondent Ana Diaz indicated that she was not happy with the Department and wanted Mercedes and Topacio removed from the home. On March 29, 1996, Rodriguez spoke with Respondent Ana Diaz who told her that Petitioner needed to remove the children from the Diaz home that day because Respondent Alejandro Diaz needed surgery on an emergency basis and they were leaving for Columbia the next day. Respondents did not lock Mercedes or Topacio in their bedroom for punishment, did not require them to clean the house in order to eat, did not keep them from eating meals as a family, and did not hit or threaten them. The children missed several therapy appointments when Respondent Ana Diaz was unable to transport them to therapy. They did receive therapy, however, on February 14, 1996, two days after their father died following a terminal illness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty and dismissing the charges filed against them. DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT 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 9th day of January, 1997. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Miami, Florida 33128 Arthur Spiegel, Esquire 1800 Northwest Seventh Street Miami, Florida 33125 Richard Doran General Counsel 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk 1317 Winewood Boulevard Building Two, Room 204-X Tallahassee, Florida 32399-0700
The Issue Whether or not Petitioners may be granted a license to operate an Adult Foster Home.
Findings Of Fact After delaying commencement of the formal hearing on January 24, 1990 for 30 minutes pending the arrival of the Petitioners Duncan, the undersigned was informed by telephone communication relayed through one of the HRS witnesses that Mr. Duncan had undergone emergency surgery and Mrs. Duncan was consequently unable to appear and wanted to "forget the hearing." By stipulation of counsel for' HRS, an Order to Show Cause was entered, dated January 25, 1990. Although that Order incorrectly noted the location of the formal hearing as "Palatka," it provided, in pertinent part as follows: Petitioners Duncan are hereby granted 20 days to show cause, in writing, filed with the Division of Administrative Hearings why their telephone communication should not be regarded as a withdrawal of their petition and this cause dismissed. If the Duncans timely indicate as set forth above in Paragraph 1 that they wish to go forward with their Petition at a later date, formal hearing will be rescheduled with regard to the schedule suggested by Petitioners and the HRS attorney, and all witness subpoenae duly served for the first hearing will be validated anew by order. If the Duncans fail to timely show cause why this cause ought not to be dismissed or clarify that they are withdrawing their Petition, this cause will be dismissed. The Petitioners filed no timely written response under the terms of the foregoing order. Someone representing herself as Petitioner Mrs. Duncan spoke with the secretary to the undersigned after the 20 days specified in the foregoing order had elapsed and requested that formal hearing be rescheduled. The caller was advised to file the request or a response to the Order in writing. To date (more than twenty days from that phone call) Petitioners have filed no written response to the Order to Show Cause.
Recommendation It is recommended that the Department of Health and Rehabilitative Services enter a final order finding that Petitioners have withdrawn their application for formal hearing and ratifying HRS' previous denial of the Petitioners' pending license application. DONE and ENTERED this 3rd day of April, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk the Division of Administrative Hearings this 3rd day of April, 1990. COPIES FURNISHED: Arthur R. Shell, Jr. HRS District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, Florida 32609 Elma R. and Albert G. Duncan 464 Spring Drive Silver Springs Shores Ocala, Florida 32672 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility. The Petitioner was licensed on February 5, 1986. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey. Accompanying the team was Earl T. Wright, an employee of the Respondent. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place. It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986: A copy of the Resident Bill of Rights was not posted in the facility. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department. The facility did not have back-flow devices to prevent contamination from entering the water supply. The fire alarm system was not continuously maintained in reliable operating condition. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200). DONE and ENTERED this 21st day of July, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July 1987. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 John Brook, Esquire 695 Central Avenue Suite 213 St. Petersburg, Florida 33701
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Kevin Hinckley, at all times relevant to the Administrative Complaint, was licensed to operate Creative Living #2, 225 26th Avenue, Northeast, St. Petersburg, Florida, as an Adult Congregate Living Facility in compliance with Chapter 400, Florida Statutes. On January 3, 1985, Earl Wright, Demaris Hughes and Bernard Dunagan, personnel from the Department of Health and Rehabilitative Services, Office of Licensure and Certification, conducted a survey of Creative Living #2. Mr. Wright was primarily responsible for conducting the administrative aspects of the survey, such as paperwork and staffing matters. Ms. Hughes was employed as a public health nutrition consultant and was responsible for surveying the nutritional aspects of the facility. Mr. Dunagan was employed as a fire safety specialist and was responsible for conducting the fire safety aspect of the survey. During the survey of January 3, 1985, the inspection team determined that various deficiencies existed in Respondent's facility. An exit conference was conducted by the inspection team with a representative of Creative Living #2 upon. completion of the survey wherein the alleged deficiencies were explained. Certain time-frames were established in which the facility was to correct the deficiencies noted in the survey. The deficiencies noted during the January 3, 1985 survey were as follows: Deficiency Correction Date a. Failure to maintain an admission February 3, 1985 and discharge record. b. Failure to maintain employee February 3, 1985 time-sheets. c. Failure to have policies and February 3, 1985 procedures to ensure leisure services for residents. Failure to ensure that supper February 3, 1985 meal and breakfast were no more than 14 hours apart. e. Failure to keep menus on file February 3, 1985 for six months and no substitutions were documented. f. Failure to keep the kitchen February 3, 1985 and equipment in good repair. g. Failure to ensure that all February 3, 1985 residents' sleeping rooms opened directly into a corridor, common use area or outside. h. Failure to have a grab bar February 3, 1985 in the shower. i. Failure to keep the building in February 3, 1985 good repair and free of hazards as evidenced by the following: the kitchen ceiling needed plastering, and (2) the rear bed- room window was cracked. Failure to keep all plumbing February 3, 1985 fixtures in good repair, properly functioning and satisfactorily protected to prevent contamination from entering the water supply as evidenced by two back-flow devices not being installed in order to prevent contamination on outside faucets. Failure to have an automatic March 3, 1985 sprinkler system in the facility. (a two-story unprotected wood-frame building.) 1. Failure to maintain a January 10, 1985 fire alarm system that could be shown to work when tested. m. Failure to provide either a January 10, 1985 one hour fire resistant rating or automatic fire protection for storage under the stairs in the facility. A follow-up visit was made by Earl Wright and Demaris Hughes on March 14, 1985 and by Bernard Dunagan on March 20, 1985. The follow-up visits were made by the Department of Health and Rehabilitative Services to determine the status of deficiencies noted during the initial survey of January 3, 1985. During the follow-up survey on March 14, 1985, an argument ensued between Mr. Hinckley and Ms. Hughes. The argument took place in the dining room and shortly thereafter the survey was terminated. Although the majority of the re- inspection was performed, the argument resulted in the survey being terminated short of completion. Because the survey was concluded before completion, the inspectors did not verify action taken by Respondent to correct certain deficiencies. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain "administrative" deficiencies noted by Mr. Wright. Specifically, the facility: 1) did not have an admission and discharge record; 2) did not have employee time-sheets; and, 3) did not have established policies and procedures to ensure leisure services for residents. Further, a resident's sleeping room in the house did not open directly into a corridor, common use area or outside, and two back-flow plumbing devices were not installed in order to prevent contamination from entering the water supply. At the time of the follow-up survey on March 14, 1985, the facility had not corrected certain deficiencies noted by Ms. Hughes which concerned diet and nutrition. Specifically, the facility failed to keep menus on file for six months and note documentation of substitute foods. At the time of the follow-up survey on March 20, 1985, the facility had not corrected a number of deficiencies noted by Mr. Dunagan which concerned fire safety. In particular, the facility: (1) failed to have an automatic sprinkler system; (2) failed to maintain a fire alarm system that could be shown to work when tested; and (3) failed to provide either a one hour fire resistant rating or automatic fire protection for an area under the stairs in the facility which was used as storage. Mr. Hinckley ran the facility out of his home and operated it on a "family concept." A resident could eat whenever he or she was hungry. Normally, the evening meal was served at 5:00 P.M. or 6:00 P.M., and a snack was provided at 8:00 P.M. or 9:00 P.M. Breakfast was available from 6:30 A.M. through 7:00 A.M. for the Respondent's children. The residents could join the family for breakfast, or, if they wished to "sleep-in," could have breakfast later. ~ An upstairs toilet had overflowed and caused the ceiling plaster in the kitchen below to buckle. On March 14, 1985, the plastering was repaired but had not been painted. The cracked bedroom window had been repaired. Following the initial survey, Mrs. Hinckley called Mr. Wright to talk about the shower grab bar. Mr. Wright told her that she could put adhesive skid grips in the shower. From her conversation with Mr. Wright, Mrs. Hinckley believed that she could substitute adhesive skid grips for the grab bar because there was a sit-down commode. Adhesive skid grips were installed in the shower. Respondents, in a separate action, lost their license as an adult congregate living facility in November, 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a fine in the amount of $600 be imposed upon Kevin Hinckley d/b/a Creative Living #2. DONE and ORDERED this 6th day of May, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1986. COPIES FURNISHED: Carol Wind, Esquire HRS District V Assistant Legal Counsel 2255 East Bay Street Clearwater, Florida 33518 Jack S. Carey, Esquire 575 2nd Avenue South St. Petersburg, Florida 33701 William J. "Pete" Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Facts Submitted by the Petitioner: Adopted in Finding of Fact 1. Addressed in Conclusions of Law. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Adopted in Finding of Fact 8. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 8. Rejected as unnecessary in view of Finding of Fact 13. Rejected as contrary to the weight of the evidence. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as subordinate. Rejected as a recitation of testimony. Rejected as a conclusion of law. Adopted in Finding of Fact 14. Addressed in Conclusions of Law section of Recommended Order.
