Findings Of Fact Based upon the evidence adduced at hearing, the following findings are made: The position of Executive Director of the Sanford Housing Authority became available on July 31, 1981, upon the resignation of Lewis B. Cox, a white male who had held the position for approximately eighteen months. His letter of resignation was dated July 13, 1981. By her letter dated July 27, 1981, addressed to Joseph Caldwell, Chairman, Petitioner informed the Respondent of her application for the vacancy. At the time she had been employed by Respondent for approximately nine and a half years as Social Services Director and as Director of Management. Lewis Cox's letter of resignation included his recommendation that Petitioner be promoted as his successor. (Petitioner's Exhibit #1) Petitioner is a black female. Respondent is a public agency responsible for various housing and community development programs, including rentals to low and moderate income individuals. It receives government subsidies, primarily from the United States Department of Housing and Urban Development, and is also supported by rental income. Its governing body is a five-member board of commissioners which during the relevant period consisted of the following: Joseph Caldwell, Chairman (Black, Male) Eliza Pringle, Vice-Chairperson (Black, female) Mary Whitney, Commissioner (Black, female) J. Wain Cummings, Commissioner (White, male) Leroy Johnson, Commissioner (Black, male). On August 13, 1981, at the meeting following Lewis Cox's resignation as Acting Executive Director, the Board appointed Petitioner as Acting Director. No one was appointed to fill her position of Director of Management and she continued to serve in both capacities until the regular Executive Director was finally appointed. This process took approximately fourteen months, from July 31, 1981, until September 29, 1982. As Acting Director, the Petitioner advertised the vacancy by placing notices in the local paper and in professional newsletters. Over one hundred applications or resumes were received. At the suggestion of the Board attorney, the commissioners were each provided copies of all resumes and each selected his or her five top candidates. This was later narrowed to a list of six candidates to be interviewed. Petitioner was the only female candidate on the list. On January 7, 1982, the Board met to appoint an Executive Director. Two separate votes were taken at the meeting and both yielded the same result: Petitioner received two votes and three other candidates received one vote each; none received a majority. On January 16, 1982, the Board met and voted again. Again, the votes were taken twice, with the same result: Petitioner received two votes, Thomas Wilson III received two votes and Willie King, Sr. received one vote. Willie King was designated "second choice" by three commissioners. On January 29, 1982, the Board voted to appoint Willie King, Sr. as Executive Director. While he was not the first choice of any commissioner, he received four votes as second choice. None of the first choice candidates received a majority. (Petitioner's Exhibits #3 - 7, Minutes of Meetings of the Housing Authority of the City of Sanford) Willie King, Sr. declined the appointment. Thus, the process continued with interviews, discussions, and failure to reach a decision, until September 29, 1982, when the Board met, interviewed Elliott Smith, Coordinator of the C.E.T.A Youth Employment Program, and voted again. He was appointed Executive Director after receiving a three-vote majority. At the same meeting Petitioner was commended for her service and for having saved the Housing Authority money by filling two positions. She was then informed that she would resume her position as Director of Management. (Petitioner's Exhibit #10, Minutes of meeting) At the time of final hearing, she was still in that position. Petitioner's lengthy service with the Housing Authority gave her experience in virtually every aspect of the agency's housing programs. The grant programs were primarily handled by the Executive Director. Elliott L. Smith, at the time of his appointment as Executive Director, had no experience in housing programs. He did, however, have approximately seven years experience as coordinator of the Comprehensive Employment and Training Program (C.E.T.A.) for the Seminole County School Board in Sanford, Florida. This is a federal grant program. He also had administrative experience as a supervisor in a mill. (Respondent's Exhibit #1) The advertisements for the position did not require housing program experience, but rather emphasized the need for management experience and familiarity with federal, state, and local programs, and government regulations. (Petitioner's Exhibits #13 and #14). It must be noted that Petitioner's Exhibit #13, an invoice and the text of classified ad in the Evening Herald, was received into evidence without objection. However, the date on the invoice is January 9, 1980, and apparently relates to a prior recruiting effort rather than the 1981 vacancy. It is presumed that since it, like Petitioner's Exhibit #14, was submitted as an example of the recruitment ads, the requirements for the position did not substantially change. Both candidates, Petitioner and Mr. Smith, met the minimum requirements for the position. The Housing Authority has a personnel policy which is recommended by the Executive Director and adopted by the Board. The policy in effect during the relevant period provided very general guidance to the Board in making its appointment: one sentence on the merit system, a nondiscrimination clause and the statement that, "Vacated or newly established positions shall be filled to the fullest extent consistent with efficient operations, by the promotion of qualified, employees." (Petitioner's Exhibit #11). The commissioners, most of whom were newly appointed, had their individual notions of what qualifications the Executive Director should have. No specific objective criteria were developed to assist them in the selection process beyond the policy referred above and the minimum requirements in the vacancy notices. The common, overall goal of the Board, however, was to restore respectability to the Housing Authority. The Sanford black community was split into factions and this impacted the Board which consisted of a majority of black commissioners. The majority of tenants were also black. Relations between the tenants and staff were strained and a negative audit from the U.S. Department of HUD (U. S. Department of Housing and Urban Development) had just been received. Staff morale was low. A previous Executive Director, Thomas Wilson, III who served from 1972 until 1980, was fired by the Board amid rumors of financial mismanagement of the block grant program. This was the same Thomas Wilson who was considered a serious contender for the position when his successor, Lewis Cox, resigned. (See paragraph 4, above). During the recruitment and hiring process, the commissioners received intense pressure from the various factions in the community supporting various candidates or urging certain qualifications. Amid the procedural and political chaos surrounding the hiring, several notable rumors or controversies emerged. One such rumor was that Commissioner Cummings had made a statement to the effect that Petitioner had done a good job, but that it was a job for a man and he could not vote for her. He denies that statement and any prejudice against the Petitioner on account of her sex or race. He alleges that he voted against her because she was so closely connected to Thomas Wilson, having worked directly under him during his controversial tenure as Executive Director. Commissioner Whitney also denied in her testimony at the hearing that she heard the statement from Mr. Cummings. This testimony conflicts with her signed statement dated February 1, 1982, received into evidence, over objection, as Petitioner's Exhibit #16. On cross- examination, she denied having drafted the statement and could not remember who brought it to her to be signed. The statement is not a sworn statement. Commissioner Whitney consistently voted for hiring the Petitioner. Commissioner Eliza Pringle did not hear the alleged statement by Commissioner Cummings either, but she generated a controversy on her own. At some point during review of the applications, she commented that photographs would be nice since they would reveal whether the applicant was male or female. She explained that the comment was a flippant remark on some of the names of the applicants. She denied any sexist animus. She stated that the Petitioner is related to her through some distant cousins who, in turn, are related to the McCoys, a prominent black family connected to one of the black Sanford factions. One of the McCoys held two terms on the Housing Authority Board. Commissioner Pringle did not wish to fuel the factionalism by hiring a relative. She supported Elliot Smith because, as a former school teacher, she was familiar with his C.E.T.A work in the schools, and felt he could make a contribution to the community. Commissioner Leroy Johnson voted for Thomas Wilson to be hired back to his former position. He thought Wilson needed another chance and had the best experience. Later, when Elliot Smith was interviewed, he supported Smith because of his skills in working with people and in writing federal grants. Elliott Smith was a contender late in the hiring process because his C.E.T.A. position was eliminated. No woman has ever been Executive Director of the Sanford Housing Authority. Petitioner conceded, however, that even if Lewis Cox had been a woman he would have been hired because of his strong financial background. Willie King, the candidate who was offered the appointment, but declined, also had a background in financial affairs. As protracted as the process was, a common bond of frustration joined all the commissioners in their search for an Executive Director. Like a deus ex machina, Elliott Smith appeared on the scene at the eleventh hour, fourteen months after the vacancy was created, and obtained the three votes necessary for a majority. By those who voted for him, he was viewed as having the necessary skills without the close ties to the Housing Authority which appeared to taint the other leading candidates.
Recommendation Based upon the foregoing, it is recommended that the Human Relations Commission enter a final order finding that Respondent did not discriminate against Petitioner and denying Petitioner's claim for relief. DONE and ORDERED this 20th day of January, 1986, in Tallahassee, Florida. MARY CLARK, 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 20th day of January, 1986. APPENDIX TO FINAL ORDER IN CASE NO. 84-2640 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in substance in paragraphs 1 and 3. Adopted in paragraph 1. Adopted in paragraph 1. The statement that all prior Executive Directors had been males is adopted in paragraph 13. Adopted in paragraph 3. Adopted in paragraph 5. Rejected as being contrary to the evidence. Adopted in paragraph 1 and 4. Adopted in substance in paragraphs 6 and 7. Adopted in paragraph 4. Adopted in paragraphs 4 and 5. Adopted in substance in paragraph 3. Adopted in substance in paragraph 5. Rejected as contrary to the evidence. Adopted in part in paragraph 9. The first sentence regarding the absence of any objective standards is too broad to be consistent with the evidence. Rejected as being unsupported by competent substantial evidence. See paragraph 8 and 9. Adopted in paragraph 8. Rejected as being unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Rejected as unnecessary and immaterial. Adopted in paragraphs 1 and 3. Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5, except that Smith was appointed on September 29, 1982, rather than September 19th. Adopted in substance in paragraph 9 and 13. Adopted in substance in paragraph 13. Rejected as unnecessary. Adopted in paragraph 11, except the final sentence, which is unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 13. Rejected as cumulative and unnecessary. Rejected as contrary to the weight of the evidence, although it is accepted that black politics is one factor in the decision-making function of the board. See paragraph 9. Adopted in paragraph 10. Adopted in substance in paragraph 10. Adopted in part in paragraph 11. The last sentence is rejected as being inconsistent with the weight of the evidence. Adopted in substance in paragraph 12. Adopted in substance in conclusions of law, paragraph 8. COPIES FURNISHED: Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Harry L. Lamb, Esquire 621 N. Fern Creek Avenue Orlando, Florida 32803 Ned N. Julian, Esquire Post Office Box 1330 Sanford, Florida 32771
Recommendation It is recommended that a final order be entered fining Henry Haywood $1,500 for these violations of Section 289.129(1)(m), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1988. WILLIAM R. DORSEY, 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 16th day of September, 1988. COPIES FURNISHED: Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Mr. Henry L. Haywood 611 Northeast 39th Street Pompano Beach, Florida 33064 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Courtesy copy to: Mr. Steve Deinma AAA Insulation 1900 Australian Avenue Rivera Beach, Florida 33404
Findings Of Fact At all times material hereto, Berta Cabral and Cabral Adult Foster Home were certified by the Department of Health and Rehabilitative Services to operate as an adult foster home. On October 2, 1985, Freda Aliber was released as a patient from Coral Gables Hospital and was placed in Cabral Adult Foster Home. When she arrived at the Cabral Adult Foster Home she had with her personal papers including bank statements for accounts which she held at Coral Gables Federal and at City National Bank. On October 3, 1985, Berta Cabral's daughter Odalys Ibarra telephoned Coral Gables Federal to advise that she would be coming to the bank that day with Freda Aliber. Later that same day Odalys Ibarra, Julie Ibarra, and Freda Aliber came to Coral Gables Federal at which time Odalys Ibarra attempted to have her name added to Aliber's bank account. Further, Odalys Ibarra made her requests of the bank personnel in Spanish although Freda Aliber does not understand Spanish. Bank employees refused to add Odalys Ibarra's name to Freda Aliber's account. On or about October 3, 1985, Odalys Ibarra telephoned City National Bank, identified herself as Berta Cabral's daughter, and asked a number of personal questions regarding Freda Aliber's account at that bank. Odalys Ibarra's attempts to gain access to Freda Aliber's personal funds were done with the full knowledge and consent of Berta Cabral. Freda Aliber did not understand what Berta Cabral, Odalys Ibarra, and Julie Ibarra were attempting to do and did not understand why she was taken to the bank.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered revoking Berta Cabral's certification as Cabral Adult Foster Home. DONE and RECOMMENDED this 31st day of July, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Leonard Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. 2nd Avenue Miami, Florida 33128 Berta Cabral Cabral Adult Foster Home 2331 N.W. 31 Street Miami, Florida 33142
The Issue Whether the Petitioner, Gwen McClain, meets the requirements of the Respondent, the Department of Health and Rehabilitative Services, for relicensure as an adult foster home sponsor.
Findings Of Fact Ms. McClain's home has been licensed as an adult foster home by the Department for approximately one year prior to April, 1992. Ms. McClain's husband, Jay McClain, resides with her. At the time of the final hearing of this matter, Ms. McClain provided a home for three adults who were mentally retarded or developmentally disabled. On or about October 31, 1991, Ms. McClain, her husband and a neighbor drove a man from Ms. McClain's home to Georgia. The man was not a family member or even a close friend of Ms. McClain. During the final hearing Ms. McClain described the man as someone her husband worked with. Ms. McClain's neighbor drove the vehicle in which the man was taken to Georgia. Ms. McClain and her husband were passengers. Ms. McClain was aware at the time that she rode to Georgia that the man had shot and wounded another man earlier that evening. Although the man that was shot ultimately died, Ms. McClain was not aware of his death at the time she accompanied the man to Georgia. Ms. McClain and her husband were eventually charged with criminal conduct as a result of the incident described in finding of fact 3. The evidence, however, failed to prove when she or her husband were charged or what she or her husband were charged with. The evidence failed to prove that the Department has adopted any rule which required that Ms. McClain disclose to the Department that she or her husband had been involved in the incident described in finding of fact 3 or that she or her husband had been charged with a crime as a result of the incident. At some time prior to April 1, 1992, probably in February, 1992, Ms. Gwen Howell, a Human Services' Counselor III for the Department, read an article in the Jasper News reporting the incident described in finding of fact 3. Ms. Howell had been at Ms. McClain's home at least once between October, 1991, and the date when Ms. Howell read about the incident in the newspaper. Ms. McClain had not mentioned the incident to Ms. Howell. Ms. Howell confronted Ms. McClain about the incident described in finding of fact 3 sometime shortly after reading the newspaper article. Ms. McClain, when asked about the incident, responded "how did you know?" The weight of the evidence failed to prove, however, what Ms. McClain may have meant by this statement. It is not, therefore, apparent whether Ms. McClain made the comment because she was merely curious where Ms. Howell had heard about the incident, because she had been hoping that Ms. Howell would not find out about the incident or for some other reason. When confronted by Ms. Howell, Ms. McClain admitted her involvement in the incident described in finding of fact 3. Ms. McClain also admitted her involvement in the incident to Carter Bass, Ms. Howell's immediate supervisor at some time before April, 1992. Ms. McClain was remorseful for her involvement, admitted she had exercised poor judgement and admitted that she had not thought of the consequences of what she had done. On or about March 31, 1992, Ms. McClain signed an Adult Foster Home Annual Renewal Application (hereinafter referred to as the "Renewal Application"). DHRS exhibit #1. The Renewal Application was received by the Department on or about April 1, 1992. The evidence failed to prove that Ms. McClain did not accurately provide all information requested on the Renewal Application. No where on the Renewal Application was Ms. McClain asked any question concerning whether she or her husband had been charged with any crime or whether she or her husband had been involved in any incident similar to the one described in finding of fact 3. Nor has the Department cited any rule which required that Ms. McClain make such a disclosure on the Renewal Application. At the time that Ms. McClain filed the Renewal Application she had admitted her involvement in the incident to Ms. Howell, the Department's employee responsible for investigating and making the initial recommendation concerning the Renewal Application, and Mr. Bass, the Department's employee responsible for recommending to the Department's district office whether the Renewal Application had been approved. The Department was, therefore, on notice of the incident when Ms. McClain filed the Renewal Application. Ms. McClain and her husband had not been adjudicated guilty of any crime at the time the Renewal Application was filed. On April 20, 1992, Ms. McClain plead, and was adjudicated, guilty of the crime of obstructing an officer without violence as a result of the incident described in finding of fact 3. Ms. McClain was sentenced to one year of supervised probation. The weight of the evidence failed to prove that the crime for which Ms. McClain was adjudicated guilty involved "harm to others." Also on April 20, 1992, Ms. McClain's husband plead, and was adjudicated, guilty of the crime of accessory after the fact to second degree murder as a result of the incident described in finding of fact 3. Ms. McClain's husband was also sentenced to one year of supervised probation. The weight of the evidence failed to prove that the crime for which Ms. McClain's husband was adjudicated guilty involved "harm to others." At some time prior to June 5, 1992, Mr. Bass recommended to James Godwin, a program administrator in the Department's district office, that the Renewal Application not be approved. Mr. Godwin exercised his authority to deny the Renewal Application and instructed Mr. Bass to so inform Ms. McClain. By letter dated June 5, 1992, the Department notified Ms. McClain that the Renewal Application was being denied for the following reason: Your application for relicensure as an Adult Foster Home Sponsor has not been recommended for approval at this time for the following reason: You do not meet the Adult Foster Home Sponsor Qualifications as per HRS Manual 140-11, Page 5-12, Paragraph 5-5d. A foster home sponsor should be free of confirmed reports of abuse, neglect or exploitation or any crime involving harm to others. At the final hearing the Department stipulated that Ms. McClain, except as set out in the Department's letter of June 5, 1992, meet the other requirements for relicensure. HRS Manual 140-11, Page 5-12, Paragraph 5-5d, provides the following requirement for licensure as an adult family home sponsor: d. a foster home sponsor should be free of confirmed reports of abuse, neglect, or exploitation or any crime involving harm to others. At the final hearing, the Department also suggested that the Renewal Application was properly denied because Ms. McClain had shown a lack of judgement. The Department, therefore, suggested that Ms. McClain did not meet the requirements of HRS Manual 140-11, Page 5-12, Paragraph 5-5c, which provides: c. A foster home sponsor should be of suitable physical and mental ability, to the extent that he is able to provide care and supervision appropriate for the clients he serves; be capable of handling an emergency situation promptly and intelligently; and be willing to cooperate with the department staff. Although the Department had not previously informed Ms. McClain that paragraph 5-5c also formed part of the reason for denying the Renewal Application, Ms. McClain raised no objection to the evidence concerning this issue presented by the Department. More importantly, it does not appear that Ms. McClain was prejudiced in any way by not being informed of the issue prior to the final hearing. Based upon the weight of the evidence, Ms. McClain's actions during the incident described in finding of fact 3 evidenced a lack of ability to react to a unusual and surprising situation in a calm and rational manner and to make an appropriate decision as to how to respond to the situation. Ms. McClain's actions, therefore, evidence a lack of ability to handle an emergency situation promptly and intelligently. Based upon the testimony of the mothers of two of the adults currently under Ms. McClain's care and four of the six Department employees who testified in this proceeding, Ms. McClain has provided good care to the adults residing in her home.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a final order denying Ms. McClain's Renewal Application and dismissing, with prejudice, Ms. McClain's petition in this case. DONE and ENTERED this 9th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 9th day of October, 1992. APPENDIX The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. McClain did not file a proposed recommended order. The Department's Proposed Findings of Fact Findings of fact 1 and 10. Finding of fact 12. The last sentence is not relevant. See findings of fact 11 and 13. Not relevant. See findings of fact 11 and 13. Findings of fact 14 and 15. See finding of fact 3. The evidence failed to prove that the man was taken to Texas. The only testimony concerning where the man was taken after he was taken to Georgia was hearsay. Findings of fact 6-9. The fact that Ms. McClain had not voluntarily disclosed the charges against her is irrelevant. The Department has failed to cite any authority which requires that she make such a disclosure. The only rule referred to by the Department during the hearing required disclosure after a conviction. The Department was fully aware of the charges and the incident prior to any adjudication of guilt in this case. See finding of fact 8. Finding of fact 9. Finding of fact 23. Hereby accepted. Findings of fact 9 and 16. Finding of fact 16. COPIES FURNISHED TO: Gwen McClain Post Office Box 314 Jennings, Florida 32053 Ralph McMurphy Assistant Legal Counsel District 3 Legal Office Department of Health and Rehabilitative Services 1000 N.E. 16th Avenue Gainesville, Florida 32609 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Slye Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
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
The Issue The issue is whether revocation of the foster home care license of Petitioner was properly based upon his abuse of a child in his care.
Findings Of Fact Under Sections 409.175(3)(a) and 409.175(4)(a), Florida Statutes, the Department of Children and Family Services is the state agency responsible for licensing and monitoring foster care homes. Under Section 409.175(8), Florida Statutes, the Department has authority to deny, suspend, or revoke a foster home license. At all times material to this case, Petitioner, Steven A. Schick, was a licensed foster care parent in Pasco County, Florida. C. B., a 13-year-old male, was a foster child in Petitioner's care from late November 1999 until his removal from Petitioner's foster care home on or about January 6, 2000, by the Department of Children and Family Services. At the final hearing, and after questioning, C. B. was found competent to testify. On more than one occasion, usually late at night, Petitioner entered C. B.'s room and fondled his genitals. On at least one of these late night visits, C. B. felt what he believed to be Petitioner's mouth touching his genitals. C. B. explained that initially he was afraid to report these incidents to adults for fear that they would not believe him. He did not report these incidents to the Department because he feared a return to the Personal Enrichment through the Mental Health Services (PEMHS) program facility. C. B. is presently taking Aderol, a depression medicine, and he was taking his medication during the late night visits to his room by Petitioner. C. B. told his friend, A. B., and A. B.'s mother about Petitioner's late night visits on or about January 6, 2000. An abuse report was called into the Department, who called the police. The police arrived at Petitioner's residence approximately 11:00 p.m. on January 6, 2000, interviewed C. B., A. B., A. B.'s mother, and the Petitioner. C. B.'s testimony did not vary significantly from the testimony of Deputy Bradford Seltman, the first police officer on the scene, or from the allegations contained in the Abuse Report #2000-3014. Petitioner denied the allegations made by C. B. during C. B.'s seven-week stay in Petitioner's home as a foster child. Petitioner offered uncorroborated speculation on C. B.'s motive in making the abuse allegations, to wit: C. B. became resentful after he became aware that Petitioner was going to adopt another boy; C. B. had a fight at school resulting in an in-school suspension; C. B. and A. B. having been caught viewing an internet sex site and ordered by Petitioner to stop and go to bed; C. B. wanted to spend the night at A. B.'s house and when ordered by Petitioner to come home he became angry, and C. B., having many opportunities, did not mention those allegations to any adults prior to January 6, 2000. C. B., in his testimony, admitted the truth of the several incidents testified to by Petitioner. C. B. refuted, however, Petitioner's assertion that those incidents were the reason he told A. B. and A. B.'s mother of the sexual encounters that had occurred over the seven-week period of time he was in Petitioner's care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order revoking the foster care license of Petitioner, Steven A. Schick. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 20th day of April, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Nicholas L. Ottaviano, Esquire Sharp, Ottaviano, & Barnes 24710 U.S. Highway 19 North, Suite 104 Clearwater, Florida 33763 Virginia A. Daire, 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 Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue The issue is whether the licensee, Robert Schmidt, should be subject to an administrative fine for failure to meet the background screening requirements at Dixie Lodge, an assisted living facility (hereinafter Respondent), and, if so, the amount.
Findings Of Fact The Agency for Health Care Administration (hereinafter the Agency) is the state agency responsible for the licensing and regulation of assisted living facilities. Respondent is licensed to operate as an assisted living facility in DeLand, Florida. Robert A. Cunningham was called as a witness for the Agency. Mr. Cunningham is a Health Facility Evaluator II. His duties include surveying assisted living facilities, adult family homes and adult day care centers. Mr. Cunningham testified that he was familiar with Dixie Lodge because he has been surveying this facility for approximately 15 years. On or about May 16, 2001, Mr. Cunningham conducted a complaint investigation of Dixie Lodge. Mr. Cunningham identified Petitioner's Exhibit One as a complaint investigation form. This contains a summary of his investigative findings. The last finding was that a care- giving employee, who did not meet the screening requirements, had been retained as an employee in a "contact" position. Mr. Cunningham identified Petitioner's Exhibit Two as a copy of the Agency's letter to the facility administrator outlining the findings of the complaint investigation. It states that the facility was in violation of Section 400.4174(2), Florida Statutes, and Rule 58A-5.019(3), Florida Administrative Code, regarding background screening on employees. The letter dated June 26, 2001, states that the inspection findings have been revised to reflect Tag A 1115, a Class II deficiency, as the result of an amendment in the law, effective May 15, 2001. Mr. Cunningham identified Petitioner's Exhibit Three as a copy of the recommendation for sanction inspection report narrative of the inspection conducted on May 16, 2001. Mr. Cunningham testified that the recommendation for sanction was prepared by Robert Dickson, a Facility Evaluator Supervisor in the area office. Mr. Robert Dickson was called as a witness for the Agency. His duties included supervising the field surveyors, who conduct the surveys of the licensed facilities, and reviewing and approving the survey work findings. Mr. Dickson is familiar with the survey at issue in this proceeding. Mr. Dickson identified Petitioner's Exhibit One through Nine. Mr. Dickson identified Petitioner's Exhibit Three as a copy of the sanction recommendation that he prepared. Mr. Dickson identified Petitioner's Exhibit Five as a copy of Section 400.414, Florida Statutes (2000), which gives the Agency the authority to deny, revoke licenses, and impose administrative fines. Mr. Dickson identified Petitioner's Exhibit Six as a copy of Section 400.4174, Florida Statutes (2000), regarding background screening and exemptions. Mr. Dickson identified Petitioner's Exhibit Seven as a copy of Rule 58A-5.019, Florida Administrative Code, regarding staffing standards and background screening. Mr. Dickson identified Petitioner's Exhibit Eight as a copy of Respondent's assisted living facility (standard) license for Dixie Lodge. Mr. Dickson identified Petitioner's Exhibit Nine as a copy of Respondent's request for a formal administrative hearing. Mr. Walker testified that at the time in question on May 16, 2001, his staff employee, Mr. Michael Roberts, did not have an exemption from background screening.
Recommendation Based upon the Findings of Fact, Conclusions of Law, and in consideration of the mitigating factors, it is RECOMMENDED: That the Agency enter a final order imposing a fine of not more than $500.00 against Respondent for failure to remove an employee who failed to meet the background screening requirements from a position working in direct contact with residents. DONE AND ENTERED this _____ day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN 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 19th day of October, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Walker Richardson, Administrator Dixie Lodge 507 South Woodland Boulevard DeLand, Florida 32720 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Larry Gene Warren, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to continue as a family foster home parent. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision dated June 7, 1999, a DCFS committee denied the request. Until her marriage to Petitioner on December 18, 1998, Petitioner's wife had served as a foster parent for some eighteen months. After the marriage, a background screening was performed on Petitioner, and it revealed that Petitioner was convicted of a felony in 1986. This resulted in the DCFS issuing a notice that Petitioner was disqualified from serving as a family foster home parent. It also disqualifies his wife, since the two occupy the same household. The basis for the foregoing action stems from Petitioner's arrest on July 8, 1986, for the offense of grand theft of an automobile, a violation of Section 812.014, Florida Statutes. The arresting report indicates that on July 24, 1986, Petitioner pled guilty to the offense, and he was sentenced to one year in the Duval County Jail. However, he was given credit for the time already served (sixteen days), and the remainder of the sentence was suspended. There was no probationary period. In explaining the circumstances surrounding the arrest, Petitioner explained that he was merely a passenger in the car when it was stopped by law enforcement officers, and he had no knowledge that it was stolen. He also contended that he pled no contest to the charge rather than guilty, as reflected on the report. In any event, he agreed to the plea and sentence on the advice of his court-appointed counsel because he says he could not get a trial date for at least six to eight months. After his 1986 conviction, Petitioner worked six years as a pipe layer. For the past four and one-half years he has been employed by an underground utilities firm in the Jacksonville area. He has recently purchased a house, married, and seeks to "get his life together." Petitioner regularly attends church with his wife, and he has monitored a ten-week foster care training session. He desires the exemption so that his wife can continue as a foster parent. Since his conviction for grant theft in 1988, Petitioner has been arrested for a string of misdemeanors and one felony. In both 1988 and 1989, he was charged with driving with a suspended license; he paid a fine on the first occasion, and he served two days in jail on the second. In January 1991, he was adjudicated guilty of possession of a firearm, a violation of Section 790.23, Florida Statutes, and served fourteen months in a state correctional facility. In February and June 1992, February 1993, and June 1994, Petitioner was arrested for driving without a driver's license. On the first occasion, he served two days in jail; on the second, he served ten days in jail followed by sixty days' probation; on the third conviction, he was sentenced to four months' probation and one hundred hours of community service; and he served nineteen days in the Duval County Jail for the last offense. In January 1998, he served two days in jail for resisting a police officer. Finally, Petitioner served five days in jail in September 1998 for resisting arrest without violence and carrying an open container of alcohol in a car. These offenses occurred over a ten-year period since the disqualifying offense, the last being less than one year ago, and they support a finding that Petitioner has not rehabilitated himself since the disqualifying offense occurred in 1986. While Petitioner's wife is obviously qualified to be a foster parent, and letters of recommendation received in evidence corroborate this finding, Petitioner has failed to demonstrate by clear and convincing evidence that he should not be disqualified from being a foster parent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 9th day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 9th day of August, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry Gene Warren 1006 Player Road Jacksonville, Florida 32218 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue for determination is whether Respondent's intended decision to fund the application of Petitioner Duval Park, Ltd. (Duval Park), is contrary to its governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Florida Housing is a public corporation that administers low-income housing tax credit programs. As of July 1, 2012, Florida Housing was authorized to use up to ten percent of its annual allocation of low-income housing tax credits to fund high-priority affordable housing developments selected through a competitive solicitation process, such as the RFP. See Ch. 2012-127, § 4, Laws of Fla. (2012)(creating § 420.507(48), Fla. Stat.). Examples of "high priority" affordable housing developments include housing for veterans and their families, and housing for persons with special needs. Prior to issuing the RFP, Florida Housing conducted some demonstration RFPs for developments serving special needs households, but the RFP represents the first actual use of the competitive solicitation process to award low-income housing tax credits. Previously, low-income housing tax credits were awarded through what was known as the universal application cycle, a process described as cumbersome, lengthy, and inflexible. As part of the universal application cycle, an applicant could indicate by checking a box that it intended to provide affordable housing to special needs households. However, the general universal application process did not lend itself to a targeted proposal detailing how the unique needs of specific special-needs population groups would be addressed. The competitive solicitation process was seen as a way to allow applicants to respond to particular high-priority development needs identified by Florida Housing. In setting forth their development proposals for defined target population groups, applicants would be able to tell their story: applicants would identify and describe the unique needs and household characteristics of the specific special-needs population group that is the focus of their application; applicants could detail and demonstrate their know-how with regard to the resources available in the community where the proposed development is located, to meet the unique needs of the target population; and applicants would be able to discuss the relevant experience of the developer and management teams that make them well-suited to carry out the proposed development and meet the unique needs of the targeted population group. The RFP The RFP solicited responses or applications proposing the development of "permanent supportive housing" (as defined in the RFP) for persons with special needs. Florida Housing issued the RFP with the expectation of funding two or more proposals. The RFP provided that applicants could propose developments for persons with special needs generally, or applicants could choose to focus on serving veterans with special needs. If an applicant chose to focus on veterans with special needs, the applicant was required to pick one of two specific subcategories: either veterans with service-connected disabling conditions transitioning from a Veterans' Administration (VA) hospital or medical center; or chronically homeless/ institutionalized veterans with disabling conditions who were significant users of public resources, such as emergency care and shelter. The RFP specified that it was Florida Housing's goal to fund at least one development proposing to serve veterans with special needs. Preference would be given to proposed developments focusing on serving special-needs veterans in the first subcategory, i.e., veterans transitioning from VA hospitals and medical centers. Duval Park, Osprey, and five other applicants timely submitted applications in response to the RFP. Both Duval Park and Osprey proposed permanent supportive housing developments to serve veterans with special needs transitioning from VA hospitals and medical centers. As described in the RFP, an evaluation committee comprised of Florida Housing employees reviewed and scored the applications. Members of the evaluation committee were instructed to independently evaluate and score the application sections assigned to them. The RFP specified that at least one public meeting would be held at which the evaluators were allowed to discuss their evaluations, make any adjustments deemed necessary to best serve the interests of Florida Housing's mission, and develop recommendations for the Florida Housing Board of Directors. For most application sections, a single evaluator was assigned to review and score the seven responses. For example, Mr. Aldinger was the evaluator who reviewed and scored the two application sections addressing developer and management company experience with permanent supportive housing. Two application sections were assigned for evaluation and scoring by two evaluation committee members. The two evaluators first independently reviewed and scored all seven application responses for the two sections. Then the two evaluators met in a noticed public meeting to conduct a "reconciliation process," in which they discussed their evaluations of the responses to the two application sections and reconciled differences in their scores. The evaluation committee ultimately concluded that Duval Park's application was entitled to a total of 119 points out of 133 possible points, and that Osprey's application was entitled to 117 points. A large gap in scoring separated these two highest-scoring applicants from the other five applicants; the next highest score was 95 points. The evaluation committee presented its recommendation to the Florida Housing Board of Directors, along with a summary of the scores assigned by the evaluation committee. The committee's recommendation was that Florida Housing should award funding to Duval Park for its proposed development. Florida Housing's Board adopted the committee's recommendation. Osprey's Protest Issue Remaining for Determination Following the parties' withdrawal of most of their protest issues, the only remaining disputed issue for resolution in this proceeding is Osprey's claim that Duval Park should have received "at least three" less points than Osprey for the sections addressing developer and management company experience.2/ Mr. Aldinger's assignment as the evaluation committee member responsible for reviewing and scoring these application sections comports with his expertise. Mr. Aldinger has served as Florida Housing's supportive housing coordinator since 2006. In that role, he has been coordinating with governmental bodies and industry stakeholders to develop strategies for focusing Florida Housing's resources on the provision of supportive housing to special needs households. The RFP was developed in furtherance of this effort, and Mr. Aldinger was one of the RFP's authors. Mr. Aldinger assigned the same number of points to the Duval Park and Osprey applications in both sections. Each application received 24 out of 25 possible points for developer experience, and all ten of the points available for management company experience. Osprey's contention is that its narratives for these two application sections show its objective superiority. Osprey's "objective superiority" argument is primarily based on a quantitative comparison, in which its narrative showed experience developing and operating a larger number of permanent supportive housing units than did Duval Park's narrative. Osprey also contends that its narrative was qualitatively better in providing greater detail regarding its experience developing and operating permanent supportive housing. As part of its argument, Osprey contends that Duval Park strayed from the RFP instructions by describing experience with more than just permanent supportive housing, but that the evaluator gave Duval Park credit anyway. The RFP instructions provide the starting point to assess Osprey's contentions. First, the RFP provided the following definition of "permanent supportive housing": Rental housing that is affordable to the focus households with household incomes at or below 60 percent of area median income (AMI), that is leased to the focus households, for continued occupancy with an indefinite length of stay as long as the Permanent Supportive Housing tenant complies with the lease requirements. Permanent Supportive Housing shall facilitate and promote activities of daily living, access to community-based services and amenities, and inclusion in the general community. Permanent Supportive Housing shall strive to meet the needs and preferences of the focus households. This RFP definition was acknowledged to be somewhat broader than how that phrase might be understood by some industry models. For example, Mr. Aldinger testified that transitional housing could be permanent supportive housing within the RFP definition, as long as a lease agreement is used. Permanency is not required, only an "indefinite" length of stay. The fact that leases are for finite terms of 12 or 24 months would not be dispositive; rather, the length of stay would be considered "indefinite" if tenants are not required to leave at the end of their lease terms, if they are not ready to leave and are otherwise in compliance with the lease terms. The provision of supportive services to meet the needs of the focus population is a key part of the RFP definition. The RFP instructions for the developer experience narrative were as follows: Developer Experience with Permanent Supportive Housing (Maximum 25 points): The Applicant must describe the experience of the Developer, co-Developer, and/or Principal in developing and operating Permanent Supportive Housing, and more specifically, housing for the households the Applicant is proposing to serve. Describe the role(s) and responsibilities of any Developer, co- Developer, and/or Principal listed in the Applicant's responses to Items A.2.c. and 3.a. of Section 6 of the RFP, related to the proposed Development, and describe the experience and qualifications relevant to carrying out the roles and responsibilities for this proposed Development. (emphasis added). The RFP instructions for the first application section must also be considered because they tie into the developer/ manager experience sections. The instructions for the first application section required the applicant to provide a detailed description of the focus population group, and the instructions also explained how that description would be used, as follows: [T]he Applicant must provide a detailed description of the resident household characteristics, needs, and preferences of the focus population(s) the Applicant is proposing to serve. This description will provide a point of reference for the Corporation's evaluation and scoring of the Application, providing the foundation for the appropriateness of the experience of the Developer(s) and Management Company, proposed Construction Features and Amenities, Resident services and Access to Community Based Services and Amenities. (emphasis added). As part of this first application section, applicants focusing on special-needs veterans transitioning from VA facilities were required to designate the specific VA facilities with which the applicants expected to be working and coordinating. Osprey, whose proposed development is in Liberty City, Miami-Dade County, designated Miami VA Healthcare System (Miami VA) in Miami. Duval Park, whose proposed development is in unincorporated Pinellas County, designated Bay Pines VA Healthcare System (Bay Pines VA) in Pinellas County, as well as the James A. Haley Veterans Hospital and the Tampa Polytrauma Rehabilitation Center, both in Tampa, Hillsborough County. Osprey and Duval Park both provided extensive narratives describing their target populations and detailing the unique needs and preferences of their target populations. Osprey's narrative described the information learned from interviewing social workers in each of the programs under the umbrella of the Miami VA, with whom Carrfour would be coordinating for transitioning veterans. Osprey's narrative also described a VA grant to Carrfour of $1,000,000 per year for supportive services for veteran families, through which Carrfour provides a comprehensive case management program called Operation Sacred Trust. This program has an outreach team that works closely with social workers throughout the Miami VA. The Duval Park narrative discussed and documented the work of the St. Petersburg Housing Authority Wounded Warrior Community Advisory Group to assess housing needs for veterans. Developer-partner ServiceSource's director of housing was a participant. As part of the assessment, the advisory group conducted veterans' focus groups to hear from the veterans themselves regarding their needs and preferences, including the particular supportive services needed to allow veterans to transition to an independent living setting. The Duval Park narrative also described the information about transitioning veterans learned through ongoing projects with the VA facilities designated for the proposed development, including a Memorandum of Understanding between James A. Haley Veterans Hospital and ServiceSource's Warrior Bridge program. As called for by the RFP instructions, Mr. Aldinger used each application's detailed description of the target population in section one as the foundation for evaluating that application's developer and management experience narratives. The experience narratives were properly evaluated in accordance with the RFP instructions in the context of each applicant's specific proposal to focus on a defined population group transitioning from designated VA facilities, whose unique needs were fleshed out in the first section narratives. Mr. Aldinger reviewed and was impressed with both Osprey's and Duval Park's developer experience narratives, for good reason. As he explained, the two responses took different approaches, but both provided good detail in the limited space allotted. Osprey's narrative described Carrfour, a non-managing member of the applicant entity that will be the developer and, through a subsidiary, manager of the proposed development. Carrfour is a not-for-profit organization created in 1993 by the Greater Miami Chamber of Commerce, with the mission of developing permanent supportive housing to end homelessness. In setting forth Carrfour's experience, the Osprey narrative took a quantitative approach by enumerating Carrfour's 16 mixed-use housing development projects that included permanent supportive housing. Some details were provided for each development, such as the funding sources, the number of total units, how many of those units were permanent supportive housing units, and how many of the units were currently occupied by veterans. However, the narrative did not explain whether any supportive services provided for these developments were specifically geared to meeting the special needs of veterans. The types of supportive services were not identified for any of the 16 developments. For three developments, the description stated only that "a full array of supportive services" was provided or that "on-site supportive services" were provided. Supportive services were not mentioned in the descriptions of the other 13 developments. Other than providing the number of units then occupied by veterans, Osprey's developer experience narrative had no information to demonstrate experience providing housing specifically developed to meet the unique needs of the focus population for its proposed development: veterans with service- related disabling conditions transitioning from the Miami VA. Duval Park's developer experience narrative did not match Osprey's approach of enumerating individual permanent supportive housing developments and quantifying the units in each development. Duval Park's response chose instead to describe in general aggregate terms the permanent supportive housing experience of the developer-partners. The Duval Park narrative went into more detail to highlight the developer team experience with housing projects specifically designed to meet the unique needs of special-needs veterans transitioning from the VA facilities designated in its application, something lacking in the Osprey response. For example, Duval Park's response described developer- partner Boley's substantial experience since it was founded in 1970, in developing more than 500 units of permanent supportive housing in Pinellas County. The narrative also described the even longer-standing experience of developer-partner ServiceSource, founded in 1959 with a mission to provide services to needy people with disabilities. Initially providing employment, training, rehabilitation, and support services (relevant to the roles described for this developer-partner in operating the proposed development), ServiceSource began a housing program in 1995. ServiceSource's permanent supportive housing development experience was summarized in shorthand as including 20 separate "HUD 202/811 awards." The unrefuted testimony established that this shorthand reference was properly understood by Mr. Aldinger to signify 20 permanent supportive housing developments for persons with disabilities. Two specific supportive housing projects for veterans, developed and operated by Boley working with the Bay Pines VA, were detailed in Duval Park's developer experience narrative. In 2007, Bay Pines VA awarded Boley a contract for "Safe Haven Model Demonstration Project" services, described in the notice of contract award as "a specialty model of HCHV residential care as mandated by the . . . zero-tolerance policy to end homelessness within the Veteran population." Through this contract, Boley acquired and rehabilitated a former 20-unit skilled nursing facility to establish Morningside Safe Haven (Morningside), which provides housing and a residential treatment program with counseling for veterans. Half of the 20 veterans housed there have service-connected disabling conditions, and one-third of the veterans transitioned from VA facilities. Pinellas County and HUD provide funding support for this VA pilot program. Osprey contends that Boley's experience developing and operating Morningside should have been ignored in scoring Duval Park's developer experience, because a residential treatment program is not permanent supportive housing. However, according to Mr. Humberg, Morningside is considered permanent supportive housing under HUD guidelines. Veterans sign a 12-month lease to reside in a unit. Although the intent is that tenants will complete treatment and move on, tenants are not required to leave at the end of their 12-month lease terms; they can stay as long as they need to, if they are otherwise compliant with their leases. Even if Morningside did not technically meet the RFP definition of permanent supportive housing, the discussion of Morningside still would be appropriate for this narrative, pursuant to the RFP instructions. The Morningside experience demonstrates Boley's "experience and qualifications relevant to carrying out" its roles and responsibilities for the proposed development, identified in the same narrative to include mental health counseling, case management, and VA coordination. Also described in Duval Park's narrative was Boley's 2010 development of Jerry Howe Apartments, with 13 units developed specifically for formerly homeless veterans, many of whom have service-connected disabling conditions. Funding for this development was provided by the VA and the City of Clearwater. Boley coordinates with Bay Pines VA in operating this development, with Bay Pines VA providing screening and referral services to identify veterans who are candidates to lease apartment units. Boley's staff members work closely with the veteran tenants to provide supportive services, preparing them for more independent living. Osprey quibbles with whether Jerry Howe Apartments technically qualifies as permanent supportive housing, noting that while the veteran tenants do sign a lease, the intent of the project is to serve as transitional housing for up to 24 months. However, Mr. Aldinger explained that transitional housing would meet the RFP's broad definition of permanent supportive housing if tenants are not required to leave after a finite period of 12 or 24 months. Mr. Humberg confirmed that veterans residing at Jerry Howe Apartments are not required to leave after 24 months, if they are not ready to move on. Mr. Humberg also clarified that Boley owned the apartments before they were redeveloped in 2010, specifically to meet the needs of veterans. Before the 2010 redevelopment, Boley operated the property as permanent supportive housing, just not specifically for veterans. In fact, two of the units remain occupied by prior non-veteran permanent supportive housing tenants, who did not want to move out in 2010 when the property was redeveloped. It is not necessary to debate whether Jerry Howe Apartments technically is permanent supportive housing, although the evidence demonstrated that the development is and has been permanent supportive housing, as defined in the RFP. Certainly, this project demonstrates Boley's experience and qualifications relevant to carrying out its roles and responsibilities for the proposed development and, therefore, is worthy of consideration as part of the developer experience narrative. Duval Park's developer experience narrative also detailed specific veterans' supportive service programs developed by both Boley and ServiceSource. The descriptions of these programs demonstrate experience and qualifications directly relevant to the described roles and responsibilities for Boley and ServiceSource with respect to the proposed development. Duval Park's experience narrative details the many accomplishments of ServiceSource's nationally-recognized Warrior Bridge program, which provides a wide variety of supportive services to veterans. Noteworthy is a 2012 award of over $1,000,000 from the City of St. Petersburg to ServiceSource to expand housing options for wounded veterans. Under this program, in the past year, ServiceSource partnered with Home Depot to modify 16 homes and facilities serving wounded veterans in the Tampa Bay area to increase accessibility, safety, and energy efficiency. This experience translates directly to the role ServiceSource will serve as a participant in designing the proposed housing development specifically to accommodate the unique accessibility and other needs of special-needs veterans with disabling conditions. ServiceSource's Warrior Bridge program also operates the "Veterans' Mall" in the vicinity of the proposed development. At the Veterans' Mall, household appliances, cookware, business attire, and necessities are made available to wounded veterans transitioning to more independent housing settings. According to Duval Park's narrative, the Veterans' Mall has served more than 325 veterans since opening in October 2011, through partnerships with Bay Pines VA and local community organizations serving veterans. ServiceSource's representative testified that ServiceSource recently secured a five-year commitment from T.J. Maxx to stock the Veterans' Mall with new suits for veterans going on job interviews. The Duval Park developer experience narrative regarding the Warrior Bridge program portrays ServiceSource's experience and qualifications to carry out its described roles and responsibilities for the proposed development, which include community outreach, physical disability counseling, employment assistance, job training, and VA coordination. Another program described in Duval Park's developer experience narrative is Boley's Homeless Veterans Reintegration Program. This is a case management, training, and employment program specifically for veterans, conducted by Boley case managers and employment specialists, demonstrating that they are well-suited to carry out the described roles and responsibilities for Boley with respect to the proposed development, which includes the lead case management role. A reasonable person attempting to compare the two developer experience narratives might say that Osprey's narrative demonstrated greater quantitative experience in developing more units of permanent supportive housing generally, but that Duval Park's narrative demonstrated better qualitative experience among the developer-partners in developing supportive housing specifically for veterans with special needs. Duval Park's narrative was more directly focused on specific experience developing supportive housing that addresses the unique needs of those special-needs veterans who are transitioning from VA facilities. In addition, Duval Park's narrative better demonstrated experience and qualifications among the developer- partners that are directly relevant to their described roles and responsibilities in carrying out the proposed development. Both narratives were very good and responsive to the RFP instructions, while taking very different approaches. Mr. Aldinger reasonably applied the RFP instructions, reasonably evaluated the two narratives, and reasonably judged them both to be deserving of the same very high score. The credible evidence does not support Osprey's contention that its developer experience narrative was superior, or that Duval Park's narrative strayed beyond the RFP instructions, or that Duval Park's narrative was judged by different standards than Osprey's narrative.3/ Osprey also takes issue with the scoring of the two applications' narratives describing management company experience with permanent supportive housing. As noted, Mr. Aldinger evaluated these narratives and awarded each application the maximum ten points for this application section. Osprey's narrative identified Carrfour's not-for-profit subsidiary, Crossroads Management, LLC (Crossroads), as the manager for its proposed Liberty Village development. Although Carrfour was established in 1993, Crossroads was not created until 2007. Before Crossroads was created, Carrfour did not manage the housing projects it developed; instead, it turned the developments over to traditional property management companies. As Osprey's narrative acknowledges, this created problems, as the traditional management companies lacked the sensitivity and training to address special needs of permanent supportive housing tenants. Since 2007, Crossroads has been taking over management functions for Carrfour developments and is now managing most of the 16 developments listed in the developer experience narrative. Osprey's application was given credit for proposing management with ideal experience. For Duval Park's application, Boley is identified as the management company. In addition, Boley will engage Carteret Management Company (Carteret), which is owned and operated by James Chadwick, a principal of developer-partner Blue Sky, to assist with tax-credit compliance and other matters within Carteret's expertise during the initial phases of the project. Boley's specific experience managing supportive housing for veterans with special needs, previously detailed in the developer experience discussion above, could not reasonably be questioned. As described in the manager experience narrative, Boley manages 561 units of its own permanent supportive housing. Boley also manages 112 additional permanent supportive housing units owned by other not-for-profit companies (including an 88-unit development owned by ServiceSource). The management narrative describes the profile of the typical Boley-managed housing unit tenant as having mental illness, including post-traumatic stress disorder and/or substance abuse problems, requiring supportive services provided by Boley staff. These supportive services include mental health counseling, case management intervention, and transportation assistance--functions for which Boley will assume responsibility operating the proposed development. The narrative also describes Boley's property management personnel: seven housing staff who handle leasing, income certifications, and other leasing matters; eight maintenance staff to handle property repairs; three drivers who provide transportation; and four accounting staff for property management functions. Osprey does not articulate a specific reason why Duval Park's management company experience narrative should not be entitled to ten points, or why Osprey believes its narrative was qualitatively or quantitatively better than Duval Park's, except to the extent of Osprey's criticisms of the developer experience narratives. Yet Osprey's narrative for manager experience arguably should not fare as well as its narrative for developer experience, given the many more years of management experience demonstrated by Boley and the comparatively few years of management experience by the Crossroads management entity created by Carrfour in 2007. Nonetheless, Mr. Aldinger credited the Osprey application with the maximum points based on Crossroads' management experience since 2007. No credible evidence was presented to support the contention that Duval Park's management experience narrative was not entitled to at least the same number of points as Osprey's management experience narrative. As repeatedly acknowledged by all parties throughout the hearing, Florida Housing was fortunate to have received two excellent proposals by Osprey and Duval Park that were head and shoulders above the other responses. Florida Housing then was faced with the difficult task of deciding which, between two excellent choices, should receive the funding nod, if only one of the two could be funded. Based on the evidence and the findings above, Mr. Aldinger's assignment of the same number of points for developer experience (24 points out of a possible 25 points) and for management company experience (the maximum of 10 points) to the two excellent proposals was not clearly erroneous, arbitrary, capricious, or contrary to competition. His conclusion that both applicants demonstrated nearly ideal development experience and ideal management company experience for their proposals was reasonable. The evidence established that Mr. Aldinger made the points assignments he did after evaluating all of the relevant information he was allowed to consider pursuant to the RFP instructions. His scoring of these two application sections was shown to be an honest, good faith exercise of his expert judgment applied to sort out the various pros and cons of the responses. Osprey did not identify any statute or rule that it contends was violated by the scoring of the Osprey and Duval Park developer and management experience narratives. Osprey argued, but did not prove, that the scoring of these two applications was contrary to the RFP specifications. Osprey argued that Mr. Aldinger's evaluation was contrary to the RFP because he considered differences between the two projects in assessing developer experience. Osprey characterized this as double- counting, because the same aspects of the projects were scored in other sections. Osprey also contended that considering the differences between the two proposed developments and the different approaches by the two applicants was tantamount to applying different standards in evaluating the two applications. Osprey's criticism was not borne out by the evidence. Instead, Mr. Aldinger described a reasonable process, consistent with the RFP terms explaining that developer experience would be assessed in the context of the attributes of the target population described in the first section of the application, and also in context with the roles and responsibilities described for the developer team members in carrying out the proposed development. The same RFP instructions and the same standards were applied to the evaluation of the two applications; it was the applications that were different, not the standards.4/ Although not actually raised as a distinct challenge, Osprey suggested an additional argument in its PRO, not articulated in its written protest or in the Joint Pre-hearing Stipulation. Osprey argued in its PRO that Florida Housing should have used two evaluators to score the developer and manager experience narratives, as a "check and balance" against arbitrary scoring. Osprey's new argument stands in stark contrast to the only challenge to the evaluation process articulated in Osprey's written protest and in the Joint Pre-hearing Stipulation. Before the hearing, Osprey challenged the evaluation procedure used for two application sections that were scored by two evaluators. Rather than providing any check-and-balance comfort, the two- evaluator process was viewed as defective by Osprey because the initial scores independently assigned by each evaluator were reconciled in a public discussion meeting at which differences in scores were harmonized, meaning that when the initial scores differed, the evaluators agreed to adjust their initial scores. Osprey has established only that for some application sections, a single evaluator was used, while for other application sections, two evaluators were used and their separate scores were reconciled. No credible evidence was offered to prove that use of two evaluators was better than using one evaluator (or vice versa, as Osprey initially argued).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decision to award funding for the Duval Park, Ltd., proposed development, and dismissing the formal written protests of Osprey Apartments, LLC, and Duval Park, Ltd. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 November, 2013.
