Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On November 20, 1985, License Number B03139 was issued to Swan Care Homes II to operate as an adult congregate living facility. This license was issued to Wayne Veccitto, who was a tenant of respondent and his wife. The expiration date of the license was May 19, 1986. Due to the facts that Mr. Veccitto had not made his rental payments in several months and the property was falling into disrepair, respondent evicted Mr. Veccitto on or about May 1, 1986. Respondent and his wife operated the facility during the month of May, 1986, and advertised for someone else to live in the facility and operate it. Neither the respondent nor his wife desired to personally operate the facility. According to the respondent, the Millers responded to his advertisement and began operating the facility around June 1, 1986. On June 9, 1986, the petitioner received an application dated June 6, 1986, from respondent's wife to operate the subject property as an adult congregate living facility. By letter dated June 16, 1986, respondent's wife was advised that her application for initial license was incomplete and that no further action on the application would be taken until the requested information was received. This letter further advised that it was unlawful to offer adult congregate living facility services or to advertise such services without having obtained a valid license. Respondent was aware of this correspondence but was not concerned because he knew the Millers were assuming the operation of the facility. On June 27, 1986, a representative of the petitioner conducted a complaint investigative visit to the facility. At that time, there were residents at the facility and a couple in charge of the facility who stated that they were working for the respondent. There was no valid license for the facility on June 27, 1986. By letter dated July 2, 1986, and received by the petitioner on July 7, 1986, respondent requested petitioner to rescind or void his application for licensure and to accept an enclosed application from Dorothy V. Miller for the same facility. The respondent and his wife have owned and/or operated approximately 12 adult congregate living facilities in Michigan and 5 or 6 in Florida.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Louis E. Smith be found guilty of violating Section 400.407(1)(a), Florida Statutes, and that an administrative fine of $1,000.00 be imposed. Respectfully submitted and entered this 1st day of February, 1988, in Tallahassee, Florida. 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 1st day of February, 1988. APPENDIX (Case No. 87-1377) The proposed findings of fact submitted by the petitioner have been accepted and/or incorporated in this Recommended Order, except as noted below: 2. Last sentence rejected as immaterial. 5. Reference to Exhibit 2 is rejected. The proper Exhibit Number is 6. Also, no competent evidence to support the statement that Exhibit 6 was rejected by HRS. COPIES FURNISHED: Gaye Reese, Esquire Office of Licensure and Certification 7827 N. Dale Mabry Hwy. Tampa, Florida 33614 Louis E. Smith 6060 Shore Blvd. South Gulfport, FL 33707 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact During the audit period in question, i.e., December 1, 1975 through March 31, 1979, Petitioner Ormond Hotel Corporation operated the Ormond Hotel, Ormond Beach, Florida. It was licensed during the audit period by the Division of Hotels and Restaurants, Department of Business Regulation, and classified as a retirement establishment. (Interrogatories) The Ormond Hotel is an old wooden structure containing 350 rooms with 258 rooms available for rental. The remaining rooms are not in proper condition for rental. Most of the hotel guests are over 65 years of age and reside there either permanently or on a seasonal basis, usually from December through March of each year. A few married couples have accommodations at the hotel, but most of the residents are single individuals occupying one room. Prior to 1978, Petitioner advertised the hotel in a national magazine called "Retirement Living" and conducted advertising on billboards, brochures, and in the classified section of the local telephone book under the hearing "Retirement Homes." The latter advertisement states that the facility is "a residential hotel," but also includes the words "DAY-WK-MO-YR." Similarly, the hotel's brochure recites that accommodations are available by day, month, or year. All units are available for rental to permanent tenants, but short-term occupancy is accepted if there are available rooms. The hotel does not have a swimming pool, but does have restaurant facilities and recreation areas. The hotel does not primarily cater to transient guests. (Testimony of Salveson, interrogatories) Respondent's auditor conducted an audit of Petitioner's business operations for the period December 1, 1975, through March 31, 1979. In arriving at whether or not the Ormond Hotel was subject to tax imposed by Section 212.03, Florida Statutes, on its rentals, he examined the Petitioner's books to ascertain the number of total available rental units and the status of tenants at the hotel during the months of April, May, and June of each year. If he found that 50 percent or more of the total units had been rented to persons residing there continuously for the specific three-month period, those tenants were considered to be permanent rather than transient tenants and the hotel was deemed exempt from tax pursuant to Rule 12A-1.61(1), F.A.C. In arriving at his determination of exempt status, the auditor did not deduct unoccupied rooms from the total number of units in arriving at his "fifty percent" determination. Although the auditor analyzed the advertising brochures of Petitioner, and was aware that the hotel was listed in the telephone directory under retirement homes, and concluded that such advertising was directed primarily to the acquisition of permanent guests, he predicted his audit findings solely on the "fifty percent" test concerning occupancy of total units. In this manner, he determined that Petitioner was exempt from taxation in 1975 based on the fact that for the April through June period for that year, 135 of the 264 total units had been occupied continuously by "permanent" tenants. In a similar manner he found that the hotel did not qualify for exemption during the succeeding years of the audit period. In this respect, he found that for 1976, there were only 119 such guests during the three-month period out of the 263 total units, which was less than 50 percent. In 1977, there were 102 such tenants out of 261 total units, which was less than 50 percent. In 1978, there were 98 such tenants and 259 total units, which was less than 50 percent. The auditor's worksheet reflects that there were 124 vacant rooms during the three-month period in 1975, 140 in 1976, 153 in 1977, and 153 in 1978. He concedes that if he had applied the "fifty percent" rule by comparing the number of three-month or "permanent" tenants with the number of occupied rooms for the three-month period each year, the number of rooms occupied by "permanent" guests would have been over fifty percent for each year of the audit period. (Testimony of Boerner, Exhibits 1-2, 4) Based on the audit, Respondent issued two separate "Second Revised Notices of Proposed Assessment" on January 15, 1980. The first assessment covered the period December 1, 1975 through November 30, 1978. It asserted tax due on room rentals in the amount of $21, 362.91 plus a delinquent penalty, and interest through January 15, 1980, for a total sum of $28,062.45. The assessment also asserted tax, penalty and interest for purchases unrelated to room rentals in the amount of $984.92, for a total assessment of $29,047.37. The assessment reflected that a partial payment had been made on October 2, 1979, in the amount of $2,590.62, leaving a balance due of $26,456.75. The other assessment showed tax on room rentals in the amount of $6,001.75, plus delinquent penalty of $300.10, and interest through January 15, 1980 in the amount of $611.76 for a total of $6,913.61. It also asserted tax, penalty, and interest on purchases in the amount of $23.39 for a total assessment of $6,937.00. This assessment also showed partial payment on October 2, 1979, in the amount of $132.08, leaving a balance due of $6,804.92. In a letter transmitting the assessments, dated January 16, 1980, Respondent advised Petitioner that the hotel did not qualify as an exempt facility under Rule 12A- 1.61(1)(a), F.A.C., during the audit period, because less than fifty percent of the facility's units were occupied by guests who had resided there three or more months as of July 1 each year. The letter further stated that "an analysis" of the rental of units submitted by Petitioner as to its exempt status did not conform to the requirements of the rule because the facility advertised to guests on a daily, weekly and monthly basis in addition to long-term leasing, the analysis used an annual rather than a three-month period prior to July as a basis, and the number of tenants at the facility rather than total units. (Exhibit 2) Petitioner's accountant prepared an analysis of the room status at the Ormond Hotel during the period July 1, 1977 to June 30, 1978. It reflects that 165 rooms, or 64.5 percent of the total of 256 units rented during the year, were occupied by tenants for a continuous period of over three months. On March 31 of that year, 157 rooms, or 61 percent of the total of 258 room available for occupancy, were occupied by guests for more than three months. Sixty-nine of the rooms were occupied by transient tenants or those with less than three- months occupancy (17 percent) and 32 rooms were unoccupied (12 percent). As of June 30, 1978, the hotel had 110 guests who had resided there for more than three months, and 18 guests with residency of less than three months. (Testimony of Salveson, Exhibit 3)
Recommendation That the proposed tax assessments against Petitioner Ormond Hotel Corporation arising out of the rental of living accommodations at the Ormond Hotel during the period December 1, 1975 through March 1, 1979, be vacated, and that the remainder of the proposed assessments be enforced. DONE and ORDERED this 10th day of June, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1980. COPIES FURNISHED: J. Lester Kaney, Esquire Post Office Box 191 Daytona Beach, Florida 32015 Linda C. Procta, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 John D. Moriarty, Esquire Department of Revenue Room 104 Carlton Building Tallahassee, Florida 32301
The Issue At issue is whether respondent should have a $200 civil penalty imposed for the alleged violation set forth in the administrative complaint. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent, Almira C. Morgan, operates an adult congregate living facility under the name of Morgan Retirement Home at 432 South F Street, Lake Worth, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On or about February 17, 1986, James Valinoti, an HRS program analyst, conducted a routine inspection of respondent's facility. During the course of the inspection, Valinoti requested documentation verifying that Morgan's employees were free of communicable diseases. This documentation is normally presented in the form of a certificate from a medical doctor. The requirement that employees be free of communicable disease was then embodied in Rule 10A- 5.19(5)(g), Florida Administrative Code [now renumbered as Rule 10A-5.019(5)(g) Since Morgan had no documentation to comply with the rule, Valinoti prepared a "Notification of Deficiencies" which recited the deficiency, class of violation, and date on which the deficiency had to be corrected. Morgan acknowledged receiving a copy of the same on March 14, 1986. According to the notice, Morgan had until April 12, 1986, in which to comply with the regulation. Sometime in April 1986 a nurse who was employed by Dr. David H. Kiner, a West Palm Beach internist, visited Morgan's facilities and administered skin tests for tuberculosis to Morgan and another employee named Violet Shepard. As agreed to by the parties, and for purposes of this proceeding only, this test was all that Morgan needed to comply with the rule. Dr. Kiner then prepared two small typewritten notes stating that the two were "free from communicable diseases." Through inadvertence, he did not place a date on the notes. When Valinoti returned to reinspect the facility on May 21, 1986, Morgan gave him the two notes. Because they were undated, Valinoti would not accept the notes. He did agree, however, that Morgan was making a good faith effort to comply with the rule. Nonetheless, he cited her for a Class III violation, a violation which "indirectly" or "potentially" threatens the safety, health or security of the residents. The administrative complaint was thereafter issued proposing that respondent be fined $200. Shortly after the administrative complaint was issued, Morgan obtained a third note from Dr. Kiner stating that the date had been omitted by "inadvertence." Morgan then contacted an HRS dietary inspector (Ms. Perez) who advised her to mail the notes to her, and she would give them to Valinoti. Although Morgan mailed the dated notes to Perez, the agency did not consider this to be timely correction of the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 10A- 5.19(5)(g), and that a $100 civil penalty be imposed. DONE AND ORDERED this 27th day of March 1987 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 27th day of March 1987. COPIES FURNISHED: K. C. Collette, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue, Third Floor West Palm Beach, Florida 33401 James A. Cassidy, Esquire 120 South Olive Street Suite 711 West Palm Beach, Florida 33401
Findings Of Fact Respondents in this case are two corporations, Share-A-Homes of America, Inc., and Share-A-Concept, Inc., and an individual, James W. Gillies. Both corporate Respondents are nonprofit corporations which have now been merged under the name Share-A-Concept, Inc. Share-A-Concept, Inc., and its predecessor, Share-A-Homes of America, Inc., own or lease parcels of real estate in Orange County, Florida. These parcels of real estate consist of lots and homes built thereon. These homes are subsequently subleased by Respondent corporation (now Share-A-Concept) to the various Share-A-Homes associates for a rental equal to the rental or mortgage payment paid by SAC plus a surcharge of 1.5 percent This surcharge is accumulated and used for start-up expenses for other Share-A-Home facilities and to meet the deficits occurring from time to time in existing Share-A-Homes associations. The various Share-A-Homes associations are made up of the elderly residents of each home who live together in a home-like atmosphere and whose needs are provided for by a house manager who does the housekeeping, laundry, grocery shopping and cooking. Larger families may have additional staff, such as a maintenance man or a gardener. Each resident of a Share-A-Home pays a sum each month into a communal bank account which is opened in the name of that particular Share-A-Homes association. The amount paid each month is set initially by the general manager, Respondent Gillies. Changes are made from time to time as necessary, pursuant to a house meeting called by either Mr. Gillies or home residents at which a proposed increase or decrease is announced, discussed and voted on by the residents. Each separate residence's bank account is maintained by Respondent Gillies in his administrative office located in the Share-A-Home family residence located at 701 Driver Street in Winter Park, Florida. Respondent Gillies is neither an officer nor director of Share-A- Concept or its predecessor corporation, Share-A-Homes. He is currently serving as executive director for Share-A-Concept without pay. Among his duties are the setting up of various "homes" by locating a site, arranging for its rehabilitation and then serving as coordinator with various churches and civic leaders in order to attract residents into the facility. Respondent Gillies is paid to function as the general manager of all Share-A-Concept family homes by the individual homes. As such, he oversees the overall structure of the home, provides proper management training for the people who work there, oversees the financial management of all of the homes, signs checks for all of the homes, interviews prospective employees for all of the homes, insures the employees are properly trained and has discharge authority over these employees. He can be discharged to the residents of any given home. Assisting him in his duties are Ruth Michelman and Rosalee Garnsy. Ms. Michelman is a self-employed administrative contract worker for all seven Share- A-Home families. As such, she pays the bills out of the bank accounts of each family on which she is authorized to write checks (she maintains custody of all checkbooks), as are Mr. Gillies and Ms. Garnsy. The checks Ms. Michelman periodically receives from each family organization in payment for her services contain no deductions for withholding or Social Security. Respondent Gillies has the decision-making authority as to what salary each employee of the individual homes is paid, but does not, he says, supervise them. By the same token, he does not do the hands-on training, merely advising as to policy and concept. He contends the on-site managers at the various individual homes do the training and, he contends, he is not responsible for the day-to-day operation of the homes. It appears, however, that Respondent Gillies, Ms. Michelman and Ms. Garnsy in fact manage and run all the various homes operated under the Share-A-Home concept in Orange County. For example, if there is a major repair necessary, the various homes do not themselves arrange for the repair, but instead report the deficiency to Mr. Gillies or the "office," which in turn arranges for repair either by an independent repairman or through Mr. Earl Jackson, the husband of the house manager at the Driver Street facility who was himself employed by Mr. Gillies as the maintenance man and chauffeur for that "home." In fact, he has often been directed by Respondent Gillies to make repairs at other homes even though his paycheck is drawn on the account of the Driver Street Home. There are seven individual "homes" in the Orange County area. They are located as: 703 Greens Avenue, Winter Park-- 6 residents; 701 Driver Street, Winter Park-- 18 residents; 620 Driver Street, Winter Park-- 7 residents; 3201 Minnesota Avenue, Winter Park-- 11 residents; 5329 Egleston Avenue, Orlando-- 8 residents; 5300 Satel Drive, Orlando-- 10 residents; and 438 Plant Street, Orlando-- 18 residents. Residents enter the home when either the resident or his or her family member makes contact with either the office operated by Respondent Gillies or one of the homes' director. If there is an opening in one of the homes, it is looked at by the prospective resident and his or her family and, if satisfactory, the new resident moves in. Fees are ostensibly determined by a meeting of the family, and Respondent Gillies states he does not assist in the setting of fees. However, the testimony of residents indicate that though they think they have an active role in managing the individual homes and setting of fees, their participation generally takes the form of approving a "suggestion" made by Mr. Gillies or some other "independent contractor." When the fees set by this process are paid, the payments are made either to the home manager or to the general office of the Respondent Gillies where a deposit is made to the individual home account. In either case, however, the checkbook for that home is maintained by Respondent Gillies; and he, Ms. Michelman and Ms. Garnsy are the only individuals who can write checks on the account. When a resident enters one of the homes, there is no contract entered into between that resident and either the "family" which he or she will join or with Share-A-Concept, Inc. By the same token, there are no written agreements between the "families" and either Share-A-Homes formerly or Share-A-Concept now. There are, however, Articles of Association which govern each individual family. These Articles are basically identical for each home and were originally drawn up approximately 12 years ago by the first family organized under this concept. Once the prospective resident enters the home, he or she has 30 days within which to make up his or her mind as to whether or not he or she wants to remain. Mr. Gillies indicates that if a resident, having once joined the association, fails to make a payment assessed by the "family" when due, Share-A- Concept, Inc., would not take action. The initial or individual family would do so. That responsibility has been delegated to Respondent Gillies, who, as the general manager, is the one who is to file the eviction notice. There is no set fee for the residents of each home to pay. The actual amount paid depends upon income of the resident and other factors. Rent alone generally runs from $75 to $80 a month for each resident. For this, the resident gets food, laundry, transportation and a bed in what in most cases are double rooms in the home. Each resident must be ambulatory and able to take care of himself or herself. If the individual becomes incapacitated, he or she must leave, as no medical services are provided. In that regard, however, medicine prescribed by the individual resident's physician are made available to the patient by the staff members, who maintain control and custody of the medicines and who put them out for the patient to take himself or herself as required. Further, some house managers, though they are told not to administer medications, will assist individual residents in administering periodic injections of such things as insulin, etc. Notwithstanding the representation of Respondent Gillies that the individual staff members at the residences may be hired and fired by the residents at that particular home, and while one resident testified that she felt she had at least some say-so in the management of the home to the extent at least of being able to give approval to proposals offered by Mr. Gillies and or his staff, other testimony by former employees of the various homes tends to indicate somewhat to the contrary. For example, both Karen Tuttle and James Bonanno were hired by Mr. Gillies, transferred by Mr. Gillies and ultimately discharged by Mr. Gillies, Ms. Tuttle stated she was discharged because Mr. Gillies felt the work was too hard and the drive too far for a pregnant woman (Ms. Tuttle was pregnant at the time). When she went back to visit the families afterward, they told her that they had been told she had quit, which in fact was not the case. Mr. Bonanno, who worked at two of the residences in question, and as supervisor of ten residences for a period of time, was hired by Mr. Gillies in that capacity. His duties included visiting all houses to see if all was well. He did some of the consolidated meat buying (the individual home managers purchased the majority of the groceries with checks drawn on that home's account by someone at Mr. Gillies' office); and if there was a problem in any of the homes, he would let Mr. Gillies know. During the time he was with this organization, he did not recall any family ever having a meeting (there is evidence that family meetings were held); and when he was ultimately discharged, that actions was taken not by any of the families, but by Mr. Gillies, who stated that the homes could not afford him any more. On balance, then, it becomes clear that while Share-A-Homes of America, Inc., and Share-A-Concept, Inc., appear to have no participation in the provision of services or the operation of the homes in question, Respondent Gillies in fact does. It is obvious from the above that Mr. Gillies and the two other individuals who work with him in the office, while employed under what appears to be an independent contractor relationship, are in fact the management team, headed by Respondent Gillies, for all the "homes" in this area which bear the title "Share-A-Home".
Recommendation Based on the foregoing, therefore, it is RECOMMENDED: That Respondent James W. Gillies be reprimanded; that he pay a fine of $50 for each home managed by him, to be suspended upon proof of licensure of the homes; and that, as general manager for all Share-A-Concept homes in Orange County, Mr. Gillies undergo licensure action for each of the facilities currently operated under his supervision. 83-336, 83-2313 RECOMMENDED this 14th day of December, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1983. COPIES FURNISHED: Douglas E. Whitney, Esq. Gerry L. Clark, Esq. Department of Health and Rehabilitative Services 400 West Robinson Street Orlando, Florida 32801 Leslie King O'Neal, Esq. Post Office Drawer 1991 Orlando, Florida 32802 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner, Morton Francis, operates Francis Villa, an ACLF at 1398 Northeast 156th Street, North Miami Beach, Florida. He and his wife are the sole staff at the facility. His present license to operate that facility has an expiration date of July 30, 1981. Prior to that date Mr. Francis applied for relicensure by Respondent, Department of Health and Rehabilitative Services. On September 17, 1981 he was informed by the Department that his application for relicensure had been denied for the following reasons: (a) the location of Francis Villa is net zoned by the City of North Miami Beach for the operation of an ACLF; (b) three of the files for residents at Francis Villa lacked sufficient medical information to determine if they had received a physical examination within 30 days of their admission to the facility; (c) the facility did not have a written procedure to be followed for emergency care during evacuation in the event of a disaster; (d) the facility had no documentation indicating that the staff is free of communicable diseases; (e) the facility did not have an up-to-date diet manual approved by the Department; (f) while menus were planned and posted in a frame on the wall at the facility they were not dated and no record indicates that the menus have been kept on file for the past six months; (g) there was no thermometer in the kitchen refrigerator; (h) in the bathroom on the west side of the facility there were no non-slip safety devices or hand rails in the bathtub used by the residents; (i) in three files reviewed by the Department during its licensure survey there was no written agreement between the resident and the facility specifying the conditions when the resident would be moved to a more appropriate residential setting; and (j) the files failed to contain the demographic data required by the Department. The foregoing deficiencies given for the denial of relicensure did in fact exist on July 7, 1981 in Petitioner's facility. They were discussed with him at that time during a relicensure survey. Reinspections were conducted on August 12, 1981, September 3, 1981, and finally on November 24, 1981. The above deficiencies in Petitioner's facility were not corrected by November 24, 1981. By the time of the final hearing Petitioner had installed a thermometer in his kitchen refrigerator and had installed non-slip safety devices and hand rails in the bathtub on the west side of the facility. Petitioner is unwilling to correct the remaining deficiencies until such time as he can be assured that his facility will be relicensed. At the final hearing Mr. Francis attempted to shift responsibility for some of his facility's defects onto the Department because he allegedly lacked information about how to handle patient records, etc. The evidence reflects that the Department has held training sessions for operators of ACLF's and has prepared forms available to Mr. Francis which may be utilized by operators in maintaining the required patient records. See Section 400.452, Florida Statutes (1981).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter a final order denying Mr. Francis' application for the relicensure of his Adult Congregate Living Facility located at 1398 Northeast 156th Street, North Miami Beach, Florida. DONE and RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Long Term Care Office Department of Health and Rehabilitative Services 1320 South Dixie Highway Coral Gables, Florida 33146 Mr. Morton Francis c/o Francis Villa 1398 Northeast 156th Street North Miami Beach, Florida 33162
The Issue Whether Petitioner's retirement benefits should be suspended pursuant to Section 121.091(9)(c) , Florida Statutes. Petitioner appeared at the hearing unaccompanied by counsel or other representative. His rights in administrative proceedings conducted pursuant to Chanter 120, F.S., were explained to him and he elected to represent himself in the matter.
Findings Of Fact Petitioner Theron J. Owen was employed by the Department of Transportation, State of Florida, for a period of 13 years, and made contributions under the applicable retirement system during that period. On March 1, 1977, at the age of 56, he retired under the Florida Retirement System, Chapter 121, Florida Statutes, with a monthly benefit of $88.79. (Testimony of Petitioner, Respondent's Exhibit 1) Petitioner was reemployed by the Department of General Services as a security guard at the State Office Building in Winter Park, Florida, on Nay 19, 1978. In December, 1978, Respondent received from Petitioner an executed Form FR23 "Application of Retiree for Suspension of Retirement Benefit and Return to Service" wherein he advised the Director of Retirement of his employment with the Department of General Services and that he had reached 500 hours of reemployment on August 15, 1978. Petitioner previously had provided verbal notice of his reemployment to Respondent in November, 1978. (Respondent's Exhibits 1-2) Petitioner's retirement benefits were suspended by Respondent in November, 1978, pursuant to Section 121.091(9) Statutes. However, December, benefit was inadvertently paid to Petitioner. During the period August- December, 1978, Respondent received $314.70 in retirement benefits. (Respondent's Exhibit 1, Stipulation of Parties) Petitioner elected to take "early" retirement, but obtained reemployment with the state for financial reasons. He acknowledges his indebtedness to the state, but has been unable to obtain a loan to repay the overnayments. He has not received retirement benefits during 1979. He is of the opinion that the statutory provision which limits a retired state employee to state benefits only during the first 500 hours of reemployment with the state shows a punitive intent on the part of the legislature to prevent retired personnel from returning to gainful state employment. During his one-year tenure with the Department of General Services, he has been promoted and received an "above-satisfactory" performance rating. (Testimony of Petitioner, Petitioner's Exhibit 1)
Recommendation That Respondent suspend payment of retirement benefits to Petitioner until restitution has been made of excess benefits paid in the amount of $314.70, plus accrued interest at 10 percent compounded annually from date of receipt of such excess benefits until date of repayment. DONE and ENTERED this 29th day of June, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Theron J. Owen 818 San Juan Boulevard Orlando, Florida 32807 L. Keith Pafford, Esquire Division Attorney Division of Retirement Department of Administration Cedars Executive Center2639 North Monroe Street Suite 207C, Box 81 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner has forfeited her rights and benefits under the Florida Retirement System (“FRS”) pursuant to section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. For over 21 years, Ms. Painter was the head softball coach for Gulf Coast, an FRS-participating employer. By virtue of her employment, Ms. Painter was enrolled in the FRS. On May 5, 2014, the Bay County Sheriff’s Office commenced an investigation into allegations that Ms. Painter had misappropriated cash that had been provided to her to pay for players’ meals during a softball tournament in Las Vegas and that Ms. Painter was collecting and keeping rent money from softball players who were on full room-and-board scholarships and had their rent paid by the college. In the summer of 2014, Ms. Painter was charged by information with one count of grand theft, a third-degree felony. Gulf Coast did not terminate Ms. Painter’s employment. Gulf Coast allowed Ms. Painter’s employment contract to expire on June 20, 2014. On January 9, 2015, the information was amended to include seven counts of grand theft, each constituting a third degree felony under section 812.014(1) and (2)(c), Florida Statutes (2014). Though some counts dealt with other allegations, for the purposes of this proceeding, the essential charges involved the meal money and the rental payments. Ms. Painter ultimately entered a plea of nolo contendere to one count of grand theft. During the hearing before the court, the state attorney specified that Ms. Painter was pleading to Count IV, which alleged theft of the meal money. The contemporaneous notes taken by the court clerk state that Ms. Painter was pleading to “Count 4.” The order of probation states that she pled to “Count 4.” However, the actual written “Plea, Waiver and Consent” signed by Ms. Painter and the attorneys shows the numeral “1” under the heading, “Count.” It is unclear from the document whether Ms. Painter was pleading nolo contendere to one count of grand theft, or to Count I of the information. Count I involved the allegation that Ms. Painter had improperly collected rent from one of the scholarship players, Megan Griffith. At the circuit court hearing, no mention was made of the specific factual allegations in the count to which Ms. Painter was pleading. The court made no findings of fact. Ms. Painter was not required to allocute to any facts.2/ Upon entry of the nolo contendere plea, the court withheld adjudication. Ms. Painter was given two years’ probation and ordered to make restitution of $4,400, perform 100 hours of community service, and was directed to have no contact with Gulf Coast or her former players. The undersigned finds that the understanding of all parties, including the court, was that Ms. Painter was pleading nolo contendere to Count IV of the information. The amount of restitution ordered is roughly consistent with the amount of meal money that was at issue in Count IV. The numeral “1” on the plea document is either a misprint or was intended to convey that Ms. Painter was pleading to a single count of grand theft. At the final hearing, Ms. Painter testified that she was given $4,752 in cash to pay for meals during the Las Vegas trip, which began on January 31, 2014, and ended on February 4, 2014. Ms. Painter testified that if the girls were splitting up to eat at different restaurants, she would dole out cash to each group. If everyone was eating at the same restaurant, all the girls would place their orders, and Ms. Painter would pay the entire tab. Ms. Painter testified that this had been her practice on team trips for some time. She stated that she used to give each girl her portion of the total meal money at the start of a trip. However, some girls would inevitably spend all of their money before the end of the trip and Ms. Painter would have to pay for their meals out of her own pocket. By doling out the money one meal at a time, Ms. Painter ensured that it would last the entire five days. Ms. Painter denied keeping any of the meal money for herself. She admitted that she did not keep receipts from each meal she purchased, but testified that meal receipts were not required on multiple day trips, such as the Las Vegas tournament. Nothing she did on this trip was different than her usual practice. At the end of the trip, she returned $132 in unspent meal money to the athletic department. Ms. Painter testified that her nolo contendere plea was made for financial and emotional reasons. The case had dragged on for 17 months. The ordeal was humiliating and exhausting. She stated that accepting the plea deal was the hardest decision she had ever made, but that she did not in fact take any of the meal money from her softball players. The Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. The undersigned did not admit the deposition of Gulf Coast Athletic Director Gregg Wolfe because it was a discovery deposition taken in Ms. Painter’s criminal case. The undersigned did admit the Bay County Sheriff’s Office case file on Ms. Painter’s criminal case, which included witness interviews and Ms. Painter’s bank statements. However, the case file was admitted on the understanding that it was a hearsay document that could only be used to supplement or explain other evidence. In the absence of competent non-hearsay evidence, or any showing by the Department that elements of the case file would be admissible over objection in a civil trial, the case file was of no utility. The Department’s only witness aside from Ms. Painter was its employee Allison Olson, the benefits administrator in the Bureau of Retirement Calculations. Ms. Olson’s knowledge of the case was gleaned purely through her review of the paper record, including the case file and the transcripts of depositions taken in the criminal proceeding. She had no first- hand knowledge of any of the events in question. Ms. Painter offered the deposition testimony of Joanne Booker, a member of Ms. Painter’s softball team at the time of the Las Vegas trip and currently an assistant basketball coach for Gulf Coast. In most essentials, Ms. Booker corroborated Ms. Painter’s testimony. Ms. Booker did not recall many particulars as to how the meals were purchased, but testified that at each meal the players were either given cash by Ms. Painter or had their meals paid for by Ms. Painter. Ms. Booker recalled no problems as to meals and recalled no one complaining about food on the Las Vegas trip. Even if it were found that Ms. Painter’s plea was actually entered as to Count I, the findings would be much the same. Ms. Painter testified that the “rent” she was accused of collecting and pocketing from the scholarship players was actually a voluntary contribution toward the rent of the non- scholarship players, to enable the entire team to live together in the same apartment complex. Ms. Painter testified that any money she collected was turned over to the lessor of the apartments. Again, the Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. Ms. Painter’s testimony was at least credible enough to be accepted in the absence of any competent non-hearsay evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Susan Painter her rights and benefits under the Florida Retirement System and providing for payment to her of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of September, 2018.
The Issue Whether the Respondent, Department of Children and Families (DCF), may impose a moratorium for new residents at The Haven Center, Inc., for those who are enrolled in the Developmental Services Home and Community-Based Services Waiver Program (DS Waiver).
Findings Of Fact The Respondent is the state agency charged with the responsibility of regulating residential facilities that provide DS waiver services. Sunrise Opportunities, Inc., Sunrise Communities, Inc., and The Haven Center, Inc., are members of the Sunrise group of providers that serve individuals with developmental disabilities. Sunrise Opportunities, Inc., is a charitable, tax-exempt entity that provides residential and day treatment services to individuals under the DS Waiver program. The Haven Center, Inc., owns seven homes located on 23+/- acres in Miami-Dade County, Florida. The homes located at The Haven Center, Inc., are operated by Sunrise Opportunities, Inc. Such homes have been monitored and reviewed by the DCF on numerous occasions. The reviews or inspections have never revealed a significant deficiency. Moreover, historically the DCF has determined that residents at The Haven Center, Inc., have received a high quality of care. For some unknown time the parties were aware of a need to move individuals residing at The Haven Center into community homes in the greater South Miami-Dade County area. Concurrently, it was planned that individuals in substandard housing would then be moved into The Haven Center. This "transition plan" as it is called in the record would be accomplished as improvements were completed to the Sunrise properties. That the parties anticipated the transition plan would be implemented as stated is undisputed. Because it believed the transition plan had been agreed upon and would be followed, Sunrise Opportunities, Inc., incurred a considerable debt and expended significant expenses to purchase and improve homes in the South Miami-Dade County area. Additionally, DS Waiver participants were moved from The Haven Center to the six-person homes in South Miami-Dade County. In fact, over fifty percent of The Haven Center residents have made the move. In contrast with the transition plan, only 12 individuals were allowed to move into The Haven Center. Instead, DCF notified the Petitioners of a moratorium prohibiting the placement of DS Waiver residents into The Haven Center. This moratorium, represented to be "temporary," is on-going and was unabated through the time of hearing. The moratorium prompted the instant administrative action. Upon notice of DCF's intention to impose a moratorium on The Haven Center, the Petitioners timely challenged such agency action. DCF based the moratorium upon an Order Approving Settlement Agreement entered in the case of Prado-Steiman v. Bush, Case No. 98-6496-CIV-FERGUSON, by United States District Judge Wilkie D. Ferguson, Jr. on August 8, 2001. The Petitioners had objected to the approval of the Settlement Agreement in Prado-Steiman but the court overruled the objectors finding they, as providers of services to the DS Waiver residents, did not have standing in the litigation. The Prado-Steiman case was initiated by a group of disabled individuals on behalf of the class of similarly situated persons who claimed the State of Florida had failed to meet its responsibility to such individuals under Federal law. Without detailing the case in its totality, it is sufficient for purposes of this case to find that the Prado-Steiman Settlement Agreement imposed specific criteria on the State of Florida which were to be met according to the prospective plan approved and adopted by the court. At the time the Prado-Steiman case was filed, The Haven Center was licensed as a residential habilitation center. After the Settlement Agreement was executed by the parties in Prado-Steiman, but before the court entered its Order Approving Settlement Agreement, the licensure status of The Haven Center changed. Effective June 1, 2001, The Haven Center became licensed as seven group homes together with a habilitation center. Pertinent to this case are specific provisions of the Prado-Steiman Settlement Agreement (Agreement). These provisions are set forth below. First, regarding group home placements, the Agreement provides that: The parties agree that they prefer that individuals who are enrolled in the Waiver [DS Waiver] live and receive services in smaller facilities. Consistent with this preference, the parties agree to the following: The Department [DCF] will target choice counseling to those individuals, [sic] enrolled on the Waiver who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete the choice counseling by December 1, 2001. * * * 4. The Department and the Agency [Agency for Health Care Administration] agree that, in the residential habilitation centers, if a vacancy occurs on or after the date this agreement is approved by the Court, the Department will not fill that vacancy with an individual enrolled on the Waiver. (Emphasis added) None of the individually licensed group homes at The Haven Center is authorized to house more than 15 persons. All of the group home licenses at The Haven Center were approved before the Prado-Steiman Court approved the Agreement. The Agreement also provides that the parties: . . . have agreed that the Court may retain jurisdiction of this litigation until December 31, 2001, at which time this case will be dismissed with prejudice. The Plaintiffs may seek to continue the jurisdiction of the Court and to pursue any of the relief requested in this lawsuit only if they can show material breach as evidenced by systemic deficiencies in the Defendants' implementation of the Plan of Compliance. In any motion to continue the jurisdiction of the Court, Plaintiffs must demonstrate that alleged breaches and any proposed cure were fully disclosed to the state defendants consistent with the "Notice and Cure" provisions set forth below in paragraphs 7-10 below, that the action requested by the plaintiffs is required by existing law, and the State Defendants have refused to take action required by law. Such relief may not be sought after the scheduled dismissal of the litigation. Absent the allegation of material breach in a pending motion, the Court will dismiss this lawsuit with prejudice on December 31, 2001. (Emphasis added) Also pertinent to this case, the Agreement provides: 19. The parties' breach, or alleged breach, of this Agreement (or of the terms contained herein) will not be used by any party as a basis for any further litigation. "Systemic problems or deficiencies" is defined by the Agreement to mean: problems or deficiencies which are common in the administration of the Waiver, inconsistent with the terms of this Stipulated Agreement, and in violation of federal law. Isolated instances of deficiencies or violations of federal law, without evidence of more pervasive conduct, are not "systemic" in nature. State otherwise, a problem or deficiency is systemic if it requires restructuring of the Florida Developmental Services Home and Community-Based Services Waiver program itself in order to comply with the provisions of federal law regarding the Waiver; but that it is not "systemic" if it only involves a substantive claim having to do with limited components of the program, and if the administrative process is capable of correcting the problem. After the Agreement was adopted the Respondent advised Petitioners to continue with the transition plan. On or about September 1, 2001, the Petitioners and the Respondent entered into contracts for the group homes operated at The Haven Center. Each home is properly licensed, has honored its contracts to provide services to disabled individuals, and has complied with state licensure laws. A licensed Residential Habilitation Center may not have a licensed capacity of less than nine. Advocacy issued a letter dated March 8, 2002, that alleged systemic problems constituting material breaches of the Agreement. Among the cited alleged deficiencies is the failure of the state to ensure . . . that locally-licensed providers receiving waiver funds for providing group- home services in fact are providing services in that setting rather than in institutional settings. Examples include: a) A former residential habilitation center known as Haven is now licensed as a group home in District 11 (Miami/Dade) and receives HCBS waiver funds. There is no evidence that The Haven Center is providing services in any setting other than as licensed by the Respondent. That is, there is no evidence it is not operating as individually licensed group homes. Further, Advocacy had actual knowledge of the instant administrative action. In short, it did not attempt to participate in the Petitioners' challenge to the moratorium. DCF has imposed a moratorium on no other licensed group home in the State of Florida. The group homes at The Haven Center are the sole targets for this administrative decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Department of Children and Family Services, enter a Final Order lifting the moratorium on placements of DS Waiver participants at The Haven Center's group homes. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 3rd day of June, 2002. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Sevices 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue, Second Floor Miami, Florida 33133
Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.
Findings Of Fact Culmer Place Tenants Association and Allapattah Tenant Association are not-for-profit corporations chartered by the State of Florida (Exhibits 1 and 2). Allapattah has received IRS tax-exempt status as a publicly supported corporation. Culmer Place has applied for such status but has not as yet received the IRS designation. Both Culmer Place and Allapattah are tenant associations at Housing and Urban Development (HUD) projects in Miami, Florida. These HUD projects are low- income residences sponsored and managed by HUD. The principal source of funds for each Petitioner is HUD. The Associations submit a budget to HUD and receive funds semiannually. Culmer Place received $453 from HUD in 1980 and Allapattah received a slightly less amount. The Associations sponsor activities in their projects principally oriented towards children. These projects, which have been presented by both Petitioners, are the Easter project, family picnic on July 4, Christmas project, community movies, and trips to the circus or other attractions. In addition, one or both Associations have sponsored dances and held rummage sales. Allapattah is currently proposing the establishment of a softball team if funds can be obtained. The Easter project consists of purchasing candy and eggs, getting volunteers to dye the eggs and putting these treats in bags which are given to the children who participate. At Culmer they have an Easter egg hunt but lack of space for hiding the eggs requires the bag approach at Allapattah. The Christmas project is similar to the Easter project in that the Petitioners use the money provided by HUD to purchase candy, fruits and stockings which are taken around and given to the children who live in the project. At the family picnic on July 4, barbeque is provided, as is other food and drinks. It appears that the Associations primarily provide "refreshments" at the projects they sponsor. No picnic was held in 1981 because funds were not available. Other activities sponsored by the Associations include cleanup campaigns at which the young people are assembled to pick up trash and generally "clean up" around the projects. The Associations provide refreshments for the workers and HUD provides the funds to pay these youngsters for their cleanup work. The money for the refreshments is budgeted by the Associations and provided by HUD. The summer lunch program is carried out at these projects with the food for the participants provided by the City, County, or HUD. The volunteers who supervise the serving of the food and activities that accompany this project are members of the Associations and are paid by HUD for the three hours they are so engaged each day. Movies are occasionally shown at the projects. The film is usually rented and the residents are invited by "flyer" to attend. Sometimes cartoons are obtained to show to the children. Occasionally, free tickets to the circus or to some local attraction are obtained by the Associations who arrange the transportation for the children and supervisors to participate in these field trips. These-projects and activities are provided free to the participants and participation is not limited to children, or others, who live in the Petitioner organizations. "Flyers" advertising these projects are prepared and delivered to the residents, placed on the bulletin boards at the housing project office, and some flyers are distributed outside the housing projects by putting them on poles, in stores (that permit) and in washerettes.
