The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated the House of India (Restaurant), an eating establishment located in Coral Gables, Florida. Respondent is now, and was at times material to the instant case, the holder of a license issued by Petitioner (license number 2313769) authorizing it to operate the Restaurant as a public food service establishment. On the morning of September 28, 2006, Douglas Morgadanes, a Sanitation and Safety Specialist with Petitioner, conducted an inspection of the premises of the Restaurant. His inspection revealed, among other things, that there were, what he believed to be, "rodent droppings" present in the Restaurant, creating "an unsanitary condition [that] could lead to food borne illnesses" if the food served to patrons became contaminated with these droppings. Before leaving the establishment, Mr. Morgadanes advised Respondent that this "unsanitary condition" had to be corrected within 24 hours. The Restaurant closed immediately following the inspection and an extensive cleanup operation was undertaken. In addition, Respondent had "[its] pest control company," Rentokil Pest Control (Rentokil), come to the Restaurant during or around the early morning hours of September 29, 2006, to perform "follow-up" rodent control services. (Rentokil had just made a "routine service" call to the Restaurant on September 27, 2006.) Mr. Morgadanes conducted a "callback" inspection of the Restaurant on September 29, 2006. His inspection revealed that, notwithstanding Respondent's cleanup and rodent control efforts, there were, what appeared to him to be, rodent droppings4 in an unused attic area above, and "a little bit to the side" of, the Restaurant's kitchen. Respondent was unable to produce for Mr. Morgadanes during the "callback" inspection documentation reflecting that Rentokil had been to the Restaurant to provide rodent control services. Respondent subsequently sent such documentation to Mr. Morgadanes' office by facsimile transmission. The documentation for the September 29, 2006, service call (9/29 Documentation) contained the following entries under "Service Performed by Rentokil" and "Cooperation Requested from Customer": Service Performed by Rentokil: Inspected and service[d] facility for pest[s]. Found no activity. Put out glue in kitchen underneath kitchen sink around hole near the back door. Cooperation Requested from Customer: Proofing Adequate? ? Yes ? No Please fix hole underneath sink to prevent rodent harborage. Sanitation Needed? ? Yes ? No Please clean dishwashing station. These entries on the 9/29 Documentation clearly and convincingly establish that, although Respondent had done cleanup work and retained the services of Rentokil in an effort to minimize the presence of rodents in the Restaurant, it had not eliminated harborage conditions on the premises.5 After receiving the documentation from Respondent, Petitioner issued the Administrative Complaint that is the subject of the instant controversy. This was the second time in less than a year that Petitioner had charged Respondent with violating Section 6-301.14 of the Food Code. A prior charge (filed in DBPR Case No. 2005064978) had been disposed of by stipulation, the terms of which were "adopted and incorporated" in a Final Order issued by Petitioner on January 12, 2006. There was no admission or finding of guilt. The "stipulated disposition" of the charge was Respondent's payment of a fine of $500.00 and attending a hospitality education program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine of $1,000.00 and directing that Respondent attend, at its own expense, a hospitality education program. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of August, 2007.
The Issue The issue is whether Respondent, Walt Disney Parks and Resorts US, Inc. (Disney), a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its property because his service animal was unleashed.
Findings Of Fact Background Disney is a public accommodation whose principal business activity consists of the ownership, operation, and management of theme entertainment parks, resorts, and related facilities located in the Orlando area. The theme parks include Magic Kingdom Park, Epcot, Animal Kingdom Park, and Hollywood Studios. Petitioner is a 50-year-old male who resides in Winter Garden. In 2004, while living in Illinois, Petitioner was severely injured when a large truck rear-ended his motor vehicle. In 2007, he was declared permanently disabled due to leg and spinal injuries suffered in the accident. As a result of these injuries, he walks only short distances with the aid of a walking device or cane. For longer distances, he normally uses a motorized scooter. Petitioner moved to Florida around 2012 to escape the cold weather in Illinois. He testified that he and his family have always enjoyed visiting Disney theme parks and other non- Disney tourist attractions in the area, and this was one of the primary reasons he moved to the Orlando area. Until this dispute arose, he was a Disney Annual Passholder, which allowed him multiple admissions to the theme parks at a discounted rate. Although Petitioner says he used the pass to access the theme parks on numerous occasions, other than those at issue in this case, there is no credible evidence that he was allowed to enter the parks with an unleashed service animal on any occasion. The Service Animal In early 2013, Petitioner decided to acquire a service animal to assist him while ambulating inside and outside his home. He purchased Lily, an eight-week-old, female Dogo Argentino, which is a large, white muscular dog developed in Argentina primarily for the purpose of big-game hunting. A strong, powerful dog with a large bite, it is one of the deadliest breeds in the world and is banned in some European countries. Lily resembles a pit bull in appearance and weighs almost 100 pounds. In contrast, a mature male Dogo Argentino weighs around 150 pounds, but does not look like a pit bull. Petitioner testified that he wanted his service animal to look like a pit bull, so he chose a female even though a male is easier to train. Although purchased in early 2013, Lily did not begin service training until April 2014, or one month before Petitioner's first claim of discrimination at the Epcot theme park. Petitioner selected Southland Dog Training (Southland) as Lily's trainer. Lily was the first Dogo Argentino Southland had trained to be a service animal. Not surprisingly, Southland has an indemnity provision in its training agreements to protect itself from liability in the event a dog that has gone through the training program ends up harming someone. And even though Lily was given training on interacting safely with children in a crowded setting, and never exhibited aggression during its training sessions, Southland does not guarantee the dog will not harm someone. In fact, Southland's owner admitted that "[a]ny and every dog has the propensity to be aggressive, it's in their genes[,]" and "[a]ny breed of dog can be aggressive." A dog's propensity to be aggressive was also confirmed by Disney's canine expert, Bob Gailey, a professional police dog and civilian dog trainer who has trained between 20,000 and 30,000 dogs over a 65-year career, including Dogo Argentinos, and conducts seminars on dog training and safety issues. He explained that no amount of training can guarantee that a dog will not bite someone with or without provocation. For obvious safety reasons, he emphasized that service animals must be kept on a leash while in crowded public areas, such as a Disney theme park. Mr. Gailey noted that "freakish incidents" can and do occur, and that even trained dogs, such as Lily, need to be on a leash to protect the safety of others. In fact, Mr. Gailey pointed out that he has been bitten around 100 times by trained dogs, without any provocation, including some whose owners say they have never bitten anyone. He added that due to a Dogo's large bite, it could "definitely" kill a child. Thus, Disney has a real and legitimate safety concern, and not one based on mere speculation, that allowing unleashed service animals on its property poses a potential safety threat to other guests, especially children. To address this concern, Disney has adopted a policy for service animals, described below. Lily has been trained to perform the following tasks: open doors; push handicap buttons; retrieve items; and pull Petitioner out of a body of water. However, Petitioner can perform some of these tasks on his own, such as pushing handicap buttons and picking up items. Petitioner contends that forcing him to keep Lily on a leash or harness at all times could result in the leash becoming tangled in the scooter's wheels. However, Mr. Gailey established that besides being trained to perform all functions on a leash, service animals can be taught how to avoid getting their leashes tangled up with the wheels. Being leashed or tethered will not interfere with Lily performing her assigned tasks. Petitioner's Limitations Petitioner has had multiple surgeries related to his accident, the last one on his left shoulder on February 2, 2010. At a follow-up appointment, Petitioner's surgeon noted that he "has full range of motion, minimal pain at the end ranges of forward flexion [and] 4+/5 strength in all planes " Pet'r Ex. 21, at 00484. In plainer terms, this means that he has nearly normal strength and full range of motion in his left shoulder, with minimal pain. Petitioner does not dispute the doctor's findings. Although his right shoulder and arm are not at normal strength for an adult male, there are no serious medical issues with either, and Petitioner acknowledged that there are no physical limitations in using them. In fact, Petitioner uses his right arm to drive and steer his motorized scooter. When walking short distances, Petitioner uses a cane with his right arm, sometimes with Lily, other times without her. When Lily accompanies him, she provides balance and stability on his left side. When riding in his motorized scooter accompanied by Lily, Petitioner normally steers with one hand and grips a leash or harness attached to Lily with his other hand. The dog usually walks in front, or to the side, of the scooter. However, when the dog is in the follow position off-leash, Petitioner cannot see Lily and thus is unable to control her, even if she is wearing an electronic collar. As the Southland trainer explained, if the owner cannot see the dog, then they do not know what the dog is doing. Petitioner admits that he cannot maintain control of his service animal at all times without holding a leash or harness. In both his Petition for Relief and testimony at hearing, Petitioner acknowledged that except for "an extended period of time," his disability does not prevent him from being able to hold and use a leash or harness on Lily. This was confirmed by his wife. Despite the injury to his left shoulder, he has held and used a leash or harness with that arm. The greater weight of evidence supports a finding that Petitioner is able to hold a leash with his hand, at least for short or moderate periods of time, or that a leash can be easily tethered to his wrist or a mobility device on the scooter. A contention that the leash may become entangled in the scooter's wheels has been rejected for the reasons stated in Finding of Fact 8. Disney's Policy on Service Animals Disney theme parks are typically crowded and noisy. On any given day, tens of thousands of guests, including large numbers of young children, frequent the parks. Service animals are routinely granted access to the theme parks. However, Disney park rules provide that "[s]ervice animals must be under the control of the owner at all times and should remain on a leash or in a harness." Resp. Ex. 1, p. 2. The requirement is not just that the dog wear a harness, but rather that the harness is being used. For the reasons expressed above, there are legitimate safety concerns that underpin this rule. State and federal law require that a visitor seeking entrance to a public accommodation with a service animal must have the animal on a leash, harness, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of one of those restraints would interfere with the animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control, such as voice control, signals, or other effective means. See § 413.08(3)(a), Fla. Stat.; 28 C.F.R. § 36.302(c)(4). Disney contends that its policy conforms to both state and federal law. The Charges The Complaint, filed on February 3, 2015, alleges that on May 4, 2014, Petitioner was denied admission to Epcot because his dog was unleashed; on August 27, 2014, he was asked to leave Downtown Disney because Lily was unleashed; on October 9, 2014, he was denied admission to Magic Kingdom because Lily was unleashed; and on December 5, 2014, he was denied admission to Animal Kingdom due to Lily being unleashed. However, no evidence was presented concerning the visit to Magic Kingdom in October 2014, and that charge has been disregarded. The testimony concerning Petitioner's other three visits to the theme parks is sharply in dispute. The undersigned has accepted as being the most credible the following version of events. Epcot Visit in May 2014 On May 4, 2014, Petitioner visited Epcot with his wife, daughter, and service animal. As Petitioner entered the International Gateway in his motorized scooter, Lily was unleashed and sitting near the bag check area in front of the park, which was around ten or 15 feet from Petitioner. A main entrance cast member is a Disney employee trained on park rules who observes guests entering the park. A cast member noticed that Lily was off-leash, which was against park rules, and stopped Petitioner, informing him that he must have the dog on a leash before entering the park. Petitioner refused to do so. Petitioner's contention that the cast member had a belligerent and hostile attitude during the encounter is not credited. Even assuming arguendo this is true, treating a guest in a rude and hostile manner does not equate to discrimination by the public accommodation. See, e.g., Lizardo v. Denny's, Inc., 270 F. 3d 94, 102 (2d Cir. 2001). While Petitioner spoke with a second cast member, Lily was unleashed and untethered, approximately ten to 15 feet away from him near a half-wall by the entrance to the park. During the 30-minute encounter, there was little, if any, attention being paid to Lily, who had no physical tether to prevent her from wandering off. A cast member then contacted Jim Beeson, Epcot's Operations Manager, who arrived to speak with Petitioner and apologized for the delay in having to walk from another area of the park. Petitioner informed Mr. Beeson that he was unable to hold a leash and needed to have his service dog untethered. During his conversation with Petitioner, Mr. Beeson observed Petitioner talking with his hands and did not see any indication that Petitioner was unable to hold a leash. He also observed that there was no leash on Lily, unlike any service dog he had encountered while working at Disney. Mr. Beeson further observed that Lily was not always by Petitioner's side, she tried to get up and wander off several times during the conversation, and she did not respond to voice commands. In fact, Mr. Beeson noticed that Petitioner's wife continually had to push the dog back so that it would not leave. Based on his 33 years of experience at Disney, which includes observing numerous guests with service animals, Mr. Beeson concluded that Petitioner could not maintain control over his dog with voice and hand signals. At no time during the interaction did Lily perform any tasks for Petitioner. In Mr. Beeson's opinion, he questioned whether Lily was even qualified as a service animal. After speaking with Mr. Beeson for approximately 30 minutes, Petitioner decided to leave the park. Disney did not deny Petitioner access to the park on account of his disability, or simply because of Lily's breed. Nor was he treated differently than any other guest with a service animal. Rather, Disney's action was motivated solely by concerns for the safety of the other guests. Had he agreed to place a leash on Lily, Petitioner would have been admitted to the park. Downtown Disney Visit in August 2014 On August 27, 2014, a guest notified a Downtown Disney security cast member of concerns about a large, unleashed dog on the property, which turned out to be Lily. Security control radioed the duty manager, Dan McManus, who arrived on the scene less than ten minutes later. When he arrived, Mr. McManus saw Petitioner, accompanied by his wife, speaking with the security cast member. Petitioner told Mr. McManus that he was unable to hold a leash due to his disability. According to Mr. McManus, he did not see any indication that Petitioner was unable to hold a leash, as he observed Petitioner waving a large binder and flipping through pages of what he claimed were American with Disabilities Act (ADA) guidelines. Mr. McManus is familiar with ADA guidelines as he frequently encounters guests with service animals on the property. He noted that during his seven years at Downtown Disney, he has observed service animals of all different shapes and sizes on the property. However, Mr. McManus explained that these service animals are always on a leash or tether, and that if a guest is in a wheelchair or electric scooter, the guest may hold a leash, the leash may be tethered or attached to the scooter or wheelchair, or another member of the party may hold the leash for the guest. Petitioner refused to comply with any of those options. Mr. McManus again informed Petitioner that Disney's policy required that service animals be on a leash. He noticed that Lily was wearing some sort of a shock collar, but did not recall the dog wearing a harness. At no time during the interaction did Lily perform any tasks for Petitioner, who had informed Mr. McManus that Lily helps open doors for him. Before Mr. McManus arrived, Petitioner telephoned the Orange County Sheriff's Office and requested that a deputy sheriff be sent to the theme park, presumably to observe the encounter. Petitioner's conversation with Mr. McManus ended when two deputy sheriffs arrived on the property. At that point, Mr. McManus went back to his office to check with the Services for Guests with Disabilities Department to inquire whether an electronic collar would satisfy the leash requirement for service dogs. He was told to adhere to the Disney policy and require that the dog be on a leash. Before Mr. McManus returned, Petitioner departed the premises. Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed, and he was not treated differently than any other guest with a service animal. Had Petitioner used a leash or harness for Lily, he would not have been approached or stopped during his visit to Downtown Disney. Animal Kingdom Visit in December 2014 On December 5, 2014, Petitioner visited Animal Kingdom with his wife and mother. He was stopped at the front entrance because Lily was not leashed or tethered. Larry Hetrick, a guest service manager at the park, was called over to speak to Petitioner. When Mr. Hetrick arrived, Petitioner was speaking with two security employees. No other Disney personnel were present. Petitioner's perceived fear that Disney personnel were "waiting" for him when he approached the park is unfounded. Petitioner explained his interpretation of federal laws and civil cases to Mr. Hetrick but never said why Lily could not be on a leash. Contrary to Petitioner's testimony, Mr. Hetrick did not tell him that Disney's policies superseded federal law, and he patiently listened to Petitioner's summary of the law while examining his paperwork. At no time during the encounter did Lily perform any service animal tasks. Ten minutes later, the duty manager for Animal Kingdom arrived and the three spoke for another ten minutes or so. When Petitioner told them that he intended to file a legal action against Disney, the conversation ended. He was not told that he "had to leave the premises." Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed. Moreover, he was not treated differently than any other guest with a service animal. Had Petitioner complied with Disney's policy, he would have been able to access the park.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 26th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of April, 2016. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Geoffrey E. Parmer, Esquire Dogali Law Group, P.A. Suite 1100 101 East Kennedy Boulevard Tampa, Florida 33602-5146 (eServed) Jeremy M. White, Esquire Kaye Scholer, LLP The McPherson Building 901 15th Street, Northwest Washington, D.C. 20005-2300 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The applicant HCA Health Services of Florida, Inc. (formerly Bayonet Point Hospital, Inc.) proposes to construct and operate a 96-bed acute care hospital in the Springhill area of western Hernando County. It is to be located on the north side of State Road 50 approximately two miles east of the intersection of State Road 50 (a two-lane east-west corridor) and U.S. Highway 19 (the area's main north-south corridor). The proposed facility is to be known as the Oakhill Community Hospital and the cost of the project is $14,952,000. The applicant proposes to serve primarily western Hernando County and two census areas in Pasco County. It is estimated that approximately 12 percent of its patients will come from Pasco County. Its primary service area does not include Citrus County or east Brooksville. An 81 percent occupancy level by the year 1988 is anticipated. The hospital will consist of medical and surgical beds, and its services will include 41 private rooms, 40 semiprivate rooms, three isolation beds, eight ICU/CCU combined beds, two operating rooms, a full-time emergency room, a laboratory, respiratory therapy, a pharmacy, radiology and nuclear medicine. The new facility will share administrative and various ancillary services and equipment with the Bayonet Point Hudson Regional Medical Center located in Pasco County. It will also be able to utilize and benefit from the HCA National Contract in the purchase of equipment and supplies. This will result in cost savings and reduced charges to patients. The western portion of Hernando County, where the Springhill area is located, has experienced a 238 percent population growth in the past ten years. Hernando County is expected to experience a growth rate of 50 percent between 1980 and 1988. The growth in population has been illustrated by the rapid expansion of schools, churches, banks, retail establishments and residential projects. The population in western Hernando County is primarily an elderly population, composed to a large degree of retirees from urban areas. It is estimated that approximately 80 percent of the residents from the Springhill area currently travel out of Hernando County for hospital services. Only one out of fourteen doctors from western Hernando County practices at Lykes Memorial Hospital, the only existing hospital in the County. The closest hospital for residents of western Hernando County is Lykes Memorial Hospital, a county-owned facility some 8.5 to 9 miles from the proposed Oakhill site. Virtually every resident of Hernando County can travel to Lykes Memorial within 30 minutes, though travel times can vary due to the amount of truck traffic on State Road 50, a two-lane road. At a time when it was operating with 140 licensed beds, Lykes Memorial experienced an overall occupancy level of 82 percent for the year 1982 and 94 percent in January and February of 1983. It is not unusual to encounter patients in beds in the hallway at Lykes, and doctors often experience difficulties in scheduling the operating rooms, with elective surgery having to be scheduled two to three weeks in advance. Lykes Memorial has recently received approval for an additional 26 beds and other areas of expansion and renovation are planned. If Lykes did not expand and the proposed facility were not constructed, Lykes Memorial would have substantial problems in meeting patient needs by 1988. The only other facility within 30 minutes driving time for the residents of western Hernando County is the Bayonet Point Hudson Regional Medical Center located in Pasco County. This facility, also owned by HCA, is located some eight miles from the Hernando County line and some 16 miles from the proposed Oakhill site. Driving time between Bayonet Point and the proposed facility is between 20 and 25 minutes. Bayonet Point opened with 200 licensed beds in March of 1981, and has experienced an occupancy level exceeding 90 percent since mid-January, 1983. In March of 1983, its occupancy rate was 94 percent. Bayonet Point derives approximately 23 percent of its patients from Hernando County. While it is estimated that Bayonet Point would lose 50 percent of its Hernando County patients, or 11 or 12 patients a day, should the new Oakhill facility be opened, this was considered to be a beneficial effect. Due to present high occupancy levels, the loss of 11 to 12 patients per day to the new facility would relieve the pressure for beds and enable Bayonet Point to admit waiting patients and improve its quality of care. It was also felt that there is sufficient new development in Pasco County to make up for any loss in patients. There are two hospitals located in Citrus County, the nearest county to the north of Hernando County. Citrus and Hernando Counties are in the same health planning district and are considered together when determining bed needs for those areas. Fifty-five percent of the population of both counties presently reside in Citrus County. Citrus County also has a higher percentage of elderly residents than Hernando County--29 percent compared to 24.5 percent. The rates of growth for the two counties are equivalent. Citrus Memorial Hospital is located at a travel distance of about 43 minutes from the proposed Oakhill site. No evidence was presented at the hearing as to the effect of the new facility on Citrus Memorial Hospital. The petitioner, Medfield Corp., d/b/a Seven Rivers Community Hospital, is a 75-bed hospital located in Crystal River, approximately 41 minutes driving time from the proposed Oakhill site. Seven Rivers presently has a great deal of unused physical capacity, with associated costs, and plans to expand its number of licensed beds without expanding its physical facility. Its application for a Certificate of Need for an additional 15 beds was recently denied by HRS because of the proposed addition of the new Oakhill facility in Hernando County. Seven Rivers estimates that it may lose 50 percent of its projected admissions from the south Citrus County area if the Oakhill facility opens. While it thus perceives a decrease in patient days and income, it was not established that increased costs would be borne by its patients or that its operating margin would decline. Even with the new Oakhill facility, it was not established that the occupancy level of Seven Rivers would be below 80 percent. As noted above, the primary service area proposed by the respondent HCA does not include portions of Citrus County. There appears to be a lack of patient origin studies and area-specific data regarding current hospital utilization in Hernando and Citrus Counties. The parties did agree that, for planning purposes, an 80 percent occupancy standard and the population projections medium range, of the University of Florida, Bureau of Economic and Business Research, should be utilized in projecting bad needs. There are numerous methodologies which can be employed to determine the hospital bed needs of a given area. One such methodology is to utilize the statewide use rate developed by the Task Force on Institutional Need and apply that rate to a specific population, making adjustments for the characteristic of age, since persons 65 and older utilize hospital services approximately three times more than persons under 65. While the statewide use rate includes urban area use rates, it is still appropriate to utilize such rates for Hernando County because retirees come from urban areas and their consumption patterns will therefore be urban, as opposed to rural. Utilization of this methodology (referred to during the hearing as the "Amherst" method) results in a need for 125 additional medical/surgical beds in Hernando County by 1988, and an additional 182 beds for Citrus County by 1988. While not adopted or promulgated in rule form yet, HRS prefers a methodology which is based on use rates for specific services for two different age groups. Use of this "Statewide Uniform Bed Need Methodology" results in a need for 148 additional medical/surgical beds for Citrus and Hernando Counties combined. Other methodologies for determining bed needs for an area include using bed-to-population ratios. Utilizing the ratio in the Florida State Health Plan (1981) for the subject planning area--3.77 beds per 1,000 population, results in an additional bed need of 197 for Hernando and Citrus Counties. The national planning standard of four beds per 1,000 population contained in the Federal Guidelines illustrates a need for 232 beds for the two counties. The area Health System Plans for 1982 through 1986 and for 1983 through 1987, which respectively utilize the ratios of 3.17 and 2.93 beds per thousand population, result in a need for 122 beds (1982-86) and 86 beds (1983-87) for Citrus and Hernando Counties combined. The Health Systems Plans' projections are somewhat suspect inasmuch as a use rate based on patient days at hospitals only within the planning area is utilized. This method does not take into account the outflow of patients from the area. Such a methodology can result in a "self- fulfilling prophecy," with the use rate restraining the number of available beds. The fact that no beds are available in an area would, if use rate were determinative, result in a finding that no beds were needed in that area. Specific area use rate methodologies also fail to address problems of adequacy and accessibility of existing facilities.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of HCA Health Services of Florida, Inc. to construct a 96-bed acute care hospital in western Hernando County be GRANTED. Respectfully submitted and entered this 17th day of June, 1983. DIANE D. TREMOR 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 17th day of June, 1983. COPIES FURNISHED: C. Gary Williams, Esquire Michael J. Glazer, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida Robert A. Weiss, Esquire Assistant General Counsel Department of Health and Rehabilitative Services Building 1, Suite 406 1323 Winewood Blvd. Tallahassee, Florida 32301 Jon C. Moyle, Esquire Thomas A. Sheehan, Esquire Moyle, Jones & Flanigan Post Office Box 3888 West Palm Beach, Florida 33402 Donna H. Stinson, Esquire Moyle, Jones & Flanigan 858 Barnett Bank Building Tallahassee, Florida 32301 David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent’s pari-mutual wagering occupational license number 1102786-1081 should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, was the state agency in Florida responsible for the licensing of racing dog kennel owners and trainers and the regulation of the pari-mutual dog racing industry of this state. Respondent, William Kohler, holds an unrestricted “U1” professional pari-mutual wagering occupational license, number 1102786-1081, and was, at all times pertinent, operating under that license as a greyhound trainer at the Sarasota Kennel Club, a pari-mutual wagering race grounds in Sarasota County, Florida. As a licensed trainer of greyhounds, Respondent was responsible for the custody, care, treatment and training of the greyhounds in his care, consistent with the mandate of the Florida Legislature relating to the humane treatment of animals as found in Section 550.2415, Florida Statutes. On or about February 25, 1996, Respondent and his assistant, Brad Adams, were dipping their dogs for flea infestation. During the course of the procedure, as Respondent was working with an animal by the name of Lisa’s Beauty, the dog became uncooperative and resisted being dipped. This procedure was being observed by Josephine Jenkins, also a licensed owner and trainer, who recalled seeing the animal careen off the fence surrounding the area and fall into the dip tank which contained a mix of water and chemicals intended to kill fleas. At hearing, Ms. Jenkins claimed she could not recall whether Respondent threw the dog against the fence or whether the animal got away from him. In a prior sworn statement made to Division investigators, however, she indicated that she saw Respondent hold the dog’s head under the dip and then beat it because it would not behave to his satisfaction. In her earlier statement, she related that she did not see Respondent throw the dog against the fence but only strike her with his open hand and throw her against the dip tub. In light of the consistency of her testimony it is found that Respondent did not throw the dog against the fence nor did he strike the dog with his fist but only with his open hand, and he did hold her head under the dip. In the opinion of Ms. Jenkins and Ms. Nelson, the weather was too cool for dog dipping on February 25, 1996. That same date, Ms. Jenkins also saw Respondent kick another dog which was in the turn out pen at the time. This kick was witnessed by Ms. Nelson who did not see any provocation for the kick. At the time, Respondent was wearing boots. Respondent denies abusing his dogs on the days in question or at any other time. He admits to fighting with his dog on February 25, 1996 because he felt it was necessary to treat them all for fleas which had come in on a new batch of dogs. Because of the infestation, he had to dip all the dogs. To leave one dog undipped would render the entire process worthless. All the dogs would be infested again in a short time. In order to dip the dog in question, he grabbed her by the collar and held her up against the fence so that he could spray her with a bomb. He admits he sprayed her ears but claims he covered her eyes and her mouth so the spray would not get inside. He admits to using sufficient force to overcome the animal’s resistance to being dipped. Respondent claims the weather was not inappropriate for bathing dogs. As he recalls, it was “barefoot and shorts” weather - somewhere around 65 to 70 degrees. Respondent also admits to breaking up a dog fight on February 25, 10996, but claims he did not intentionally kick a dog. He inserted his foot in amongst the dogs in an attempt to break up the fight, but he also claims he has never gone up to a dog and kicked it as discipline or in anger. Respondent claims he makes his living from training dogs and keeping them in good shape. He claims he cannot do that by abusing his dogs, but he admits he will use force to break up a dog fight. With regard to the dog in question, Lisa’s Beauty, she was examined by two veterinarians shortly after the alleged abuse, and neither found any evidence of mistreatment. Though this may indicate no noticeable damage was done, it does not establish that the misconduct alleged did not take place. Considering the testimony as a whole, the undersigned has considered the allegations by Respondent that the statement of Mr. Adams and the testimony of Ms. Nelson were colored by the fact that they were boy and girlfriend and Respondent had recently terminated Mr. Adams’ employment. However, it was evident that Ms. Jenkins’ testimony was given with great reluctance, and considering that she is a qualified and licensed trainer, her appraisal of the Respondent’s actions are given substantial weight. Whereas a layman might consider less than gentle treatment of an animal to be abuse, a trained professional has more insight into what is appropriate treatment, and testimony of such an individual which, as here, indicates abuse, cannot easily be disregarded. Taken together, the evidence of record shows that Respondent intentionally held the dog in question’s head under the surface of the solution, struck it on the head with his open hand, and kicked another dog in the stomach and ribs. Whereas the open-handed striking may not have caused unnecessary pain to the animals in issue, clearly the other actions did, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of pari-Mutual Wagering enter a final order suspending Respondent’s occupational license for a period of two weeks, and imposing an administrative fine of $200.00. DONE and ENTERED this 24th day of February, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Kohler 18456 Monet Avenue Port Charlotte, Florida 33948 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Deborah R. Miller Director Department of Business and Professional Regulation Division of Pari-Mutual Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint dated September 26, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for inspecting and regulating public food service establishments in Florida. Respondent is a food service establishment licensed and regulated by the Department holding License No. 5811184. On September 21, 2006, Alex Chu inspected the premises of Respondent. Mr. Chu prepared a Food Service Inspection Report which noted, 35A-04-01-1; Observed rodent activity as evidenced by rodent droppings found. OBSERVED HUNDREDS OF FRESH AND OLD RODENT DROPPINGS ON 3 DIFFERENT SHELVES WITH FOOD ITEMS AND SINGLE-USE ITEMS IN DRY STORAGE AREA. THE DRY STORAGE AREA IS OPEN AND PART OF THE KITCHEN. ESTABLISHMENT IS OPEN/OPERATING AND SERVING FOOD TO THE PUBLIC DURING INSPECTION. Mr. Chu determined that the presence of rodent droppings constituted a "critical violation" that warranted immediate closure of the restaurant. A critical violation is one that if not corrected, is more likely than other violations to cause an imminent food-borne illness, contamination, or environmental hazard. Respondent, through its co-owner, was immediately made aware of the presence of rodent droppings and the "critical" nature of this violation. On September 19, 2006, Massey Services had performed pest control services on the restaurant premises at the owner's request due to the presence of rodent droppings. There is an established protocol regarding critical violations and immediate closure of the restaurant establishment. This process involves an expedited decision made in Tallahassee based on the local report of a critical violation. Typically, it takes about two hours, as it did in this case. The inspector then returns to the violating licensee, posts a "closed" sign on the premises, and explains the licensee's opportunity for remediation. A "call-back" inspection is conducted within 24 hours after closure. On September 22, 2006, Mr. Chu re-inspected Respondent's premises. It was determined that the premises had been extensively cleaned during the previous night, that rodent droppings were found during the cleaning (although not "hundreds of rodent droppings"), and the restaurant was re-opened.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, enter a final order finding that Respondent, Brothers and Sisters Barbeque, Inc., violated Rule 6-501.111, Food Code; that a fine in the total amount of $250.00 be imposed for this violation; and that the owner(s) of Respondent be required to attend, at personal expense, an educational program sponsored by the Hospitality Education Program. DONE AND ENTERED this 22nd day of June, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 22nd day of June, 2007.
