Findings Of Fact Upon consideration of the admissible oral and documentary evidence adduced at the hearing, the following relevant facts are found: By letter dated May 24, 1976, respondent was informed of petitioner's intention to impose an administrative fine against respondent in the amount of $2,000.00 for unacceptable violations of Chapter 400 of the Florida Statutes and Chapter 10D-29 of the Florida Administrative Code. The violations were found during a survey conducted on April 19 and 20, 1976, and during an appraisal visit by a professional nurse from petitioner's office on March 4, 1976. Among the violations cited were failures to provide protection of patients from neglect; failure to provide adequate and accurate nursing practices; failure to call for a physician when necessary and obtain orders for medication and treatment; administration of medication without a physician's direct order; failure to obtain the required services of at least two physicians to provide regular, consultative and emergency service to patients, failure to provide nursing service policies and procedures manuals meeting the total needs of patients; unsigned medical records; and inadequacy of records relating to monthly fire drills. The letter of May 24, 1976, is attached hereto and is made a part of these findings of fact the same as if fully set forth herein. Respondent does not contest the charges set forth in the May 24, 1976 letter and stipulates that, at the time of the investigations referred to therein, the deficiencies existed and the violations charged therein were true. The purpose for respondent's request for and appearance at the administrative hearing was to present evidence in mitigation of the amount of the proposed $2,000.00 fine. The majority of evidence presented by respondent was of a hearsay nature and thus is not sufficient in itself to support a finding of fact in this recommended order. Mr. Edward J. Brazil became employed with ORA Industries, Inc. on April 1, 1976, as Vice-President of Operations. Since that time, he and the organization have been working hard to upgrade the conditions and quality of patient care at Hospitality Care Center in Jacksonville Beach. Follow-up surveys conducted in June and later months in 1976 show that respondent has undertaken positive steps to correct the deficiencies noted in the May 24, 1976 letter. Most, if not all, of such deficiencies have now been corrected. Even though the financial condition of respondent's facility is poor, patient care is their first priority and respondent intends to continue its operation and to upgrade its staff and conditions.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that an administrative fine in the amount of $2,000.00 be imposed, against respondent for the violations of Ch. 400, F.S. and Ch. 10D-29, F.A.C., set forth in the letter dated May 24, 1976. Respectfully submitted and entered this 20th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Robert M. Eisenberg Department of Health and Rehabilitative Services P.O. Box 2417 F Jacksonville, Florida 32231 Mr. Edward J. Brazil Vice President of Operations ORA Industries, Inc. 225 Peachtree Street, N.E., Suite 1612 Atlanta, Georgia 30303
Findings Of Fact Respondent is licensed to operate an adult congregate living facility known as Vereene's Love and Care Home, which is located at 1304 E. Gibbs Street, Melbourne, Florida. On February 27 and March 20, 1986, two representatives of Petitioner conducted an inspection of Respondent's facility. This inspection uncovered numerous violations, including 16 Class III violations. The facility was re-inspected on March 23 and 26 and April 21, 1987, and representatives of Petitioner determined that five Class III violations remained uncorrected. The uncorrected Class III violations were the failure of Respondent: to provide at least one staff member at the facility at all times with certification in an approved first aid course and documentation that all staff are free of communicable diseases; to maintain and make available physical examination records for one resident; to provide that one resident received medication in accordance with her prescription; to ensure that a refrigerator and chest freezer had accurate thermometers; and to maintain two freezers at a temperature below 0 degrees Fahrenheit. Representatives of Petitioner discussed the violations with Respondent at the time of the 1986 inspections. The parties agreed that Respondent would have varying deadlines, ranging from immediately to May 1, 1986, within which to correct the violations. Respondent proved at the hearing that the bottle of Diazide prescribed for a Mrs. Smith bore an incorrect dosage. Respondent and Mrs. Smith both testified that the physician had orally changed the dosage to one tablet every other day. Mrs. Smith produced a bottle containing this medication and bearing this dosage. The thermometers in the refrigerator and chest freezer were constantly falling off their shelves. The thermometers were always present in these two appliances.
Findings Of Fact The Petitioner, Vinder Homes, Inc., d/b/a The White House of Vinder Homes, Palm Harbor, Florida, is an 8-bed licensed adult congregate living facility. The Petitioner was licensed on February 5, 1986. On January 29, 1986, the Respondent, the Department of Health and Rehabilitative Services, sent an inspection team to the Petitioner's facility to conduct the initial survey. Accompanying the team was Earl T. Wright, an employee of the Respondent. Present at the Petitioner's facility during the initial survey was Robert A. Jones, and James C. Vinson, the owner and applicant for the license. During the survey, the HRS survey team identified several violations of rules or statutes governing an adult congregate living facility. At the end of a survey conducted by HRS of adult congregate living facilities, HRS normally follows the procedure of orally describing and explaining the rule violations that have been found to those persons representing the facility who are present during the survey. The representative of the facility is then asked to sign an "exit letter." The "exit letter" is a form that is given to the facility representative to explain the procedures and deadlines that must be followed to correct the violations. HRS exhibit 1 is a copy of the "exit letter" given to the representatives of the Petitioner on January 29, 1986, at the conclusion of the survey. The letter was signed by Mr. Jones, who was expressly authorized by Mr. Vinson to sign the letter on that date on behalf of the Petitioner, and to receive a copy on behalf of the Petitioner. The Petitioner, through its duly authorized agent, was reminded by HRS exhibit 1 that it had been advised of the deficiencies and had been requested to write them down. It was further advised that a time frame had been established for correction of each deficiency and that it could request additional time, if needed. It was further advised that an unannounced revisit would be conducted after the date of correction to determine if the corrections had taken place. It was further advised by the exhibit that it was required to correct each deficiency by the date established, and that failure to do so might result in the assessment of an administrative fine. At the conclusion of the survey on January 29, 1986, Mr. Jones, the authorized representative of the Petitioner, was told by the HRS survey team the nature of each of the violations found, and was advised concerning the period of time established for correction of each asserted violation. Mr. Vinson had thee opportunity to learn about the violations as well, but it is unclear whether he availed himself of the opportunity. At some time after January 29, 1986, and before April 1, 1986, the Respondent mailed a copy of HRS exhibit 2 to the Petitioner. It was mailed to the Petitioner at the address of the facility. This was the address given to HRS in the license application by Mr. Vinson. HRS exhibit 3. Mr. Vinson had not requested that notices be sent by HRS to any other address. HRS exhibit 2 is a form used by the Respondent to give written follow-up notice to the adult congregate living facility of the violations and correction schedule. It is intended to give written notice of that which had already been orally discussed with the facility representative at the time of the survey. The violations listed on HRS exhibit 2 are the same violations which were orally described and explained to the authorized representative of the Petitioner on January 29, 1986. On April 1, 1986, Mr. Wright conducted an unannounced reinspection of the Petitioner's facility. A copy of HRS exhibit 2 was present at the facility on April 1, 1986, when Mr. Wright conducted his unannounced reinspection. By April 1, 1986, the Petitioner had corrected some of the rule violations listed on HRS exhibit 2. The Petitioner, through its authorized representatives present at the facility, in fact received a copy of HRS exhibit 2 before April 1, 1986. The Petitioner presented no evidence that HRS exhibit 2 was received by its authorized representative in an untimely manner, i.e., at some time after the deadline had passed for correction of violations. Mr. Vinson testified that he never received a copy of the exhibit, but his authorized representative, at the address he had given to HRS as the address of the licensed facility, did receive it. The following are the four violations contained in HRS exhibit 2 that are in dispute in this case. Each is alleged to have occurred on January 29, 1986, and to still to have not been corrected on April 1, 1986: A copy of the Resident Bill of Rights was not posted in the facility. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department. The facility did not have back-flow devices to prevent contamination from entering the water supply. The fire alarm system was not continuously maintained in reliable operating condition. A copy of the Resident Bill of Rights was not posted in the facility on January 29, 1986, or on April 1, 1986. Mr. Vinson's testimony that he "thought" it was posted is insufficient to overcome the proof presented by the Respondent. A management person had not completed the Food Service Management Training Course given by the Respondent at the County Health Department on either January 29, 1986, or April 1, 1986. Mr. Vinson's testimony that he thought Mr. Jones would have completed the course is not sufficient. Mr. Vinson did not produce Mr. Jones to testify, nor did he produce any record of completion of the course. The facility did have back-flow devices to prevent contamination from entering the water supply on January 29, 1986, or on April 1, 1986. The testimony of Mr. Vinson is credited over the contrary testimony of Mr. Wright. Mr. Wright did not explain how he conducted the inspection of the back-flow devices, and did not explain what he found and how that resulted in the conclusion that back-flow devices were not present. Mr. Vinson, on the other hand, stated that he built the building himself, that he installed back-flow devices, that such devices were required by his building permit, and that he obtained a certificate of occupancy following construction. The Department has not proved the point by a preponderance of the evidence. The proof that the facility did not have a fire alarm system that was continuously maintained in reliable operating condition on January 29, 1986, was not adequate to prove this fact by a preponderance of the evidence. Mr. Wright acknowledged that a fire inspector (who did not testify) accompanied him on the survey and conducted that portion of the initial survey. Although Mr. Wright testified that he heard the fire inspector attempting to work the fire alarm system, this second hand evidence is not sufficient to prove that the system was not in good and operable mechanical order on January 29, 1986. Moreover, the proof is not adequate that the system was not mechanically operable on April 1, 1986. Mr. Wright asked the young woman present during the revisit to work the system, and she was not able to do so because she did not know how to operate it. Mr. Wright did not try to work it either. Thus, no one conducted a test of the system, and there is, therefore, no evidence in the record to show that the deficiency that existed on January 29, 1986, had not been corrected. It must be remembered that the deficiency that existed on January 29, 1986, was not that the manager or administrator of the facility could not operate the fire alarm system, but that the system was mechanically inoperable. There were no elderly persons present in the Petitioner's facility during the initial survey on January 29, 1986, but on April 1, 1986, the young woman in charge of the facility was serving breakfast to four elderly persons. None of the violations discussed above were considered by HRS to be of sufficient gravity to deny issuance of the license.
Recommendation It is therefore recommended that the Department of Health and Rehabilitative Services enter its final order finding that Vinder Homes, Inc., d/b/a the White House of Vinder Homes, Palm Harbor, Florida, has failed to correct the first two violations described above in the time established by the Department, and assessing a total civil penalty of two hundred dollars ($200). DONE and ENTERED this 21st day of July, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July 1987. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Warren A. Wilson, III, Esquire 2101 U.S. Highway 19 North Suite 201 Palm Harbor, Florida 33563 John Brook, Esquire 695 Central Avenue Suite 213 St. Petersburg, Florida 33701
The Issue Whether the Order of Fine was properly imposed.
Findings Of Fact The Watsons admit that they placed a large amount of fill dirt on their property. The property upon which the fill was placed is a vacant lot (Lot 13) that is contiguous to the property upon which the Watsons reside. The Watsons also admit that they did not obtain a permit from Lake County that authorized them to place the fill dirt on Lot 13. Lake County Code Enforcement Special Master Charles Johnson issued an Order of Enforcement on September 14, 2007, which required the Watsons to remove the fill dirt or to obtain a “proper permit” within 14 days. The Watsons appealed the Order of Enforcement to the circuit court, which remanded the case to the Special Master to allow the parties an opportunity to file written memoranda in support of their positions. Following the remanded an identical Order of Enforcement was issued by the Special Master on May 10, 2008. The Watsons did not want to remove the fill dirt. Therefore, after the 2007 Order of Enforcement was issued, Mr. Watson contacted Lake County staff to obtain a permit. Mr. Watson said he spoke to Jennifer Meyers, the development processing coordinator in the Public Works Department to obtain a permit for lot grading, but she told him that department only issued development orders for subdivisions. Mr. Watson spoke to Carmen Carroll in the Building Services Division about obtaining a building permit for lot grading. She told him the County did not issue building permits for lot grading. Ms. Carroll stated at the hearing that her division had never issued a building permit for lot grading, alone. Lot grading is often involved in a building permit, but only as a part of a proposal to construct a building. Mr. Watson said he arranged in September 2007 to meet on site with an engineer from the Public Works Department, but the engineer cancelled the meeting without an explanation. Mr. Watson claims that Lake County thwarted his efforts to obtain the proper permit for the fill dirt through the failure of its employees to tell him what permit to get. Lake County bears some responsibility for the confusion that existed about the "proper permit" that was needed. However, the Watsons' efforts to obtain a permit fell short of reasonable. Mr. Watson says he told the Lake County employees he needed a permit to satisfy the Order of Enforcement, but his testimony on this point was vague. It was not made clear that all of these County employees understood the circumstances of the Order of Enforcement and the daily fine the Watsons were facing. There is no evidence that Mr. Watson, when confronted with the responses from Ms. Meyers and Ms. Carroll, requested to speak to their supervisors or asked them to contact the County Attorney's office so that the issue could be resolved. There is no evidence that the Watsons sought information about the proper permit from the code enforcement staff of the County. There is no evidence that Mr. Watson contacted the Lake County Attorney's office until many months later. Mr. Watson said that after the 2008 Order of Enforcement was issued, he saw no purpose in speaking again with Lake County staff about obtaining a permit because he thought it would be a waste of time. That was not reasonable behavior. It was not reasonable for the Watsons to let daily fines accumulate for months because they were frustrated by the statements made by some County employees. Furthermore, the Watsons' attorney, Allison Strange, immediately began settlement negotiations with the County's legal staff in which the parties contemplated Lake County's issuance of a permit in a couple of weeks. The Watsons put an end to those discussions when they refused to provide engineering support for their lot grading proposal. The County was concerned about a steep slope on the northwest part of Lot 13 and fill dirt in the drainage easement. The Watsons proposed to install a retaining wall called a “Sierra Slope System.” Mr. Watson claimed that the proposal was “rejected” by the County, but the County simply told the Watsons that the proposal would have to be submitted by a licensed engineer in order to be evaluated. That was a reasonable request, but Mr. Watson did not want to spend the money for an engineer. The Watsons never applied for a permit for the fill dirt before the Order of Fine was issued. Taking all of the relevant evidence into account, it is found that the Watsons were not prevented by Lake County from obtaining a permit for the fill dirt. A claim not raised by the Watsons until the hearing in this appeal is that they do not owe any fines because Lake County abated the daily fines during settlement negotiations in May 2008 and the abatement was never lifted. On May 22, 2008, Ms. Strange sent a letter to Assistant County Attorney LeChea Parsons indicating their agreement about abating the fines: I appreciate your agreement to abate the issuance of any fines against Mr. and Mrs. Watson until Lake County has had adequate time to perform its inspections and issue the development order or permit, as ordered by the Special Master. Per our discussion this morning, it seems that Tuesday, June 10, 2008 would provide sufficient time and that no fine would accrue prior to then. The parties agree that one purpose of the May 2008 letter was to try to resolve the matter before the Watsons' deadline for filing an appeal of the Order of Enforcement. A Lake County employee made an inspection of Lot 13 and the County told the Watsons, through their attorney, Ms. Strange, of the County's concerns about the existing grading. The Watsons responded with their proposal for the Sierra Slope System. However, when the Watsons refused to submit their proposal through an engineer the negotiations broke down and the Watsons filed the appeal. The County contends that it only agreed to abate the fines until June 10, 2008. The fact that the Watsons did not raise the issue of the abatement until the hearing in this case suggests that at the time of the settlement negotiations in 2008, the Watsons did not think the fines had been abated beyond June 10, 2008. Taking all the relevant record evidence into account, the most reasonable meaning to ascribe to the parties' representations and actions is that the abatement of fines was to last until June 10, 2008, because that was considered sufficient time to get a permit and was the last day to settle the dispute before an appeal was filed. When the Watsons refused to submit engineering plans and filed the appeal, the negotiations were terminated and so was the abatement of fines. The County claims that because the Watsons never came into compliance with the Order of Enforcement, the offer of the abatement of fines had no effect. However, just because the negotiations were unsuccessful does not void the period of abatement. The fines were abated from May 27, 2008 (the deadline for compliance set out in the Order of Enforcement) through June 10, 2008, a period of 15 days. It does not appear from the record that the Watsons had further contact with Lake County officials about obtaining a permit until October 2009. During this period, the parties were in litigation over the Order of Enforcement. In an email dated October 15, 2009, Mr. Watson asked Ms. Marsh to tell him what “proper permit” he needed. Ms. Marsh replied that the proper permit would be a building permit. Even after being so informed, Mr. Watson still did not apply for a building permit. On September 14, 2009, the Watsons' property was inspected by Lake County Code Enforcement Inspector Jessica Jorge who observed that the fill had not been removed. An Affidavit of Non-Compliance was prepared, but it does not appear from the record that it was referred to the Special Master. On April 22, 2010, Ms. Jorge inspected the property again and she observed that the fill had still not been removed. Ms. Jorge checked the records of the County and determined that no permit had been issued for the fill. Ms. Jorge executed an Affidavit of Non-Compliance, which was presented to Special Master Johnson. On May 12, 2010, Special Master Johnson, without a hearing, entered the Order of Fine. He ordered the Watsons to pay a fine for non-compliance during the period from May 27, 2008 (the deadline for compliance) through April 22, 2010 (the date of inspection), which is 695 days, at the rate of $50.00 per day, plus the $500 fine assessed in the Order of Enforcement. The total fine imposed was $35,250. Lake County Code of Ordinances Section 8-10(a)(2) sets out factors the Special Master is to consider in determining the amount of the daily fine: In determining the amount of the fine, if any, the special master shall consider the following factors: The gravity of the violation; Any actions taken by the violator to correct the violation; Any previous violations committed by the violator. Special Master Johnson could not remember whether he applied these factors before issuing the Order of Fine. The factors will be considered now. The gravity of the violation is not great. There was no evidence presented of actual harm done to neighboring properties and no evidence that there were complaints from neighbors. The potential for erosion and drainage issues existed, but the County did not show that actual problems occurred or that the potential for harm was significant. The actions taken by the Watsons to correct the noncompliance have been discussed above. The Watsons made efforts to comply, but stopped short of reasonable efforts because they did not submit any kind of permit application and were not willing to employ an engineer to produce a grading plan. The Watsons claim they could have complied with the Order of Enforcement by getting approval for a lot grading plan under an new ordinance, but Lake County prevented them from doing so. In September 2008, the Lake County Code was amended to add procedures for approving lot grading plans. The Watsons were not aware of the new ordinance when it was adopted. The County did not inform them that about the new ordinance. Ms. Marsh said she did not inform Mr. Watson because she was unaware of the new ordinance. The record does not show when the Watsons learned about the new ordinance, but it was after the Order of Fine was issued. When the Watsons learned about the new ordinance, they submitted a Lot Grading Plan in October 2011. The plan was prepared by a licensed engineer. The Watsons' Lot Grading Plan was approved by the County on January 10, 2012. On that date, the Watsons finally came into compliance with the Order of Enforcement. Although the County's failure to inform the Watsons is relevant to the mitigation of fines, it does not excuse the Watsons' failure to apply for a permit for the fill dirt. If they had applied for a permit, the new ordinance would likely have been used by the County. The Watsons also claim they were misled by the County to believe that they did not need to obtain a permit for the fill until they were ready to build a house on the property. However, that representation was part of a settlement proposal which would have required the Watsons to terminate their lawsuits. The Watsons did not terminate their lawsuits, so it is unreasonable for the Watsons to rely on the County’s representation. It appears that the Watsons, convinced that the Order of Enforcement was wrong, were not willing to expend the money necessary to get a permit. In addition, obtaining a permit would have undermined their argument in the ongoing litigation over the Order of Enforcement that no permit was needed. There was no evidence presented regarding previous code violations by the Watsons. Section 8-10(a)(2) allows for as daily fine up to $1,000.00 per day. Special Master Johnson set the daily fine at the very low end of this range. Taking the factors into account, $50.00 a day is a reasonable daily fine amount.1/
