Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. on May 20, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit win, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:49 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $1,200.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this BF aay of Pece hi , 2075. Rie Oi fon Disnew 5. Werpglle Diann S. Wo¥zalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van _ Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this CG day of Sanuary , 20\4_ Prtccln MN Nihbe For Putreln~M, Division of Hotels and Restaurants : “Certified: Article: Number, ; ; 7446 008 S111 5516 1783
Findings Of Fact Petitioner is a department of state government headed by the Florida Citrus Commission. Petitioner collects various excise taxes on boxes of citrus fruit. When taxes are collected, they are deposited in a bank account in Lakeland, Florida. The next day the funds are transferred to the state general revenue account in Jacksonville, Florida. This account is administered by Respondent. Such transactions are accomplished daily. The funds deposited in the state account accrue interest for the State's general revenue, but not for Petitioner's specific use. When Petitioner does not have an immediate need for money that it has deposited in the state account, it advises the Respondent to transfer the funds to accounts administered by the State Board of Administration for investment in bonds. Interest derived from these investments accrues for the benefit of the Petitioner, except that the Board of Administration imposes a charge for its services. When Petitioner needs money, it advises the Board of Administration to transfer funds back to the state account. Respondent imposes a two percent fee upon money deposited by Petitioner in the state account. After investments by the State Board of Administration were first authorized in 1965, the Respondent developed a policy of imposing its fee on interest income generated by the State Board of Administration's investments. Thus, when Petitioner's money was transferred back from the State Board of Administration to the general state account, Respondent would impose a two percent deduction on the interest income. On November 19, 1979, the Office of the Attorney General issued a formal opinion that the interest generated by investments of the State Board of Administration were not subject to the Respondent's fees. Respondent thereafter refunded fees that had been collected on that basis to Petitioner. Respondent filed its Rule 3A-40.101, Florida Administrative Code, with the Office of the Secretary of State on March 2, 1981. The rule reestablishes Respondent's former policy of imposing a deduction on interest income earned and reported on investments by the State Board of Administration. Respondent has implemented the rule and imposed its two percent fee upon Petitioner's interest income. Petitioner has initiated the instant rule challenge proceeding contending that Respondent lacks authority to impose the deduction on the interest income, and that the rule therefore constitutes an invalid exercise of delegated legislative authority.
The Issue Whether Respondent has committed a discriminatory act with respect to public accommodations in violation of Chapter 760, Florida Statutes, and if so, what remedy should be provided.
Findings Of Fact Petitioner is an African-American woman living in the Gainesville area. She is married and has children. On November 15, 2006, Petitioner went to the Days Inn at 7516 Newberry Road to make a reservation for her mother and sister. She was dressed casually and had her children with her. When she arrived at the Days Inn, she spoke with John Osley, who was later identified as the manager of the hotel, and asked if all the rooms were entered from the outside. He told her that the Newberry Road hotel had outside rooms only but that the Days Inn on Archer Road had internal corridors. Mr. Osley asked what dates she wanted to reserve. She told him November 23-24, which was Thanksgiving Day and the day after. Mr. Osley told her there were no rooms available those days because the hotel was the host hotel for a race-car event. She asked about cancellations and he told her to call back closer to the dates she needed the room to see if there were any. He gave her a business card for a person at the front desk. Upon her request, he allowed her to look at one of the rooms. Petitioner thanked Mr. Osley and left. After she left the hotel, she felt that she had not been treated appropriately. That evening, she checked on the Days Inn internet website to see if any rooms at the Newberry Road location were available online for November 23-24. She was able to make a reservation for the desired days via the internet. Ultimately, her mother opted to stay at another hotel. As a result, the reservation at the Days Inn was canceled. Petitioner was angry because she felt she had been mistreated at the hotel, and wrote to Joseph Kante, whom she identified as being in a management position for Days Inn. She also e-mailed him and within 24-hours, she received an apology from him. However, according to Petitioner, Mr. Kante indicated that each Days Inn is responsible for itself and the person she needed to speak to regarding the Days Inn on Newberry Street was John Osley. Petitioner returned to the Days Inn on Newberry Road in an effort to speak with Mr. Osley, and also called the hotel. Each time, Mr. Osley was not present and she never spoke with him about her concerns. After her attempts to reach him were unsuccessful, she filed her complaint with the Commission. No evidence was presented regarding any other person of any race seeking a room at the same time as Ms. Henderson who was able to reserve a room when she could not. No evidence was presented indicating that Mr. Osley was not being truthful when he stated that no rooms were available when Ms. Henderson originally sought to reserve a room.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that dismisses Petitioner's claim. DONE AND ENTERED this 27th day of September, 2007, in Tallahassee, Leon County, Florida. S Hearings Hearings LISA SHEARER NELSON Administrative Law Judge Division of Administrative 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 this 27th day of September, 2007. COPIES FURNISHED: Burnita Henderson 5010 Southwest 63rd Boulevard Gainesville, Florida 32608 John Osley Days Inn I-75 7516 Newberry Road Gainesville, Florida 32606 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether a discriminatory housing practice occurred against Petitioner by Citrus Health Network Inc., and Jose Garcia.
Findings Of Fact Lomax is a black female who lived at 125 Northwest 15th Street, Lower Level, Miami, Florida ("old residence"). Lomax's disability income is $1,291.99 monthly. From January 2011 to September 2011, Lomax did not pay any rent at her old residence, even though there was no interruption in her income. Lomax was going to be evicted because the building was in foreclosure and had been neglected by the property owner. The Housing Assistance Network of Dade ("HAND") is a program that helps prevent people from becoming homeless. The program is funded by a grant from the U.S. Department of Housing and Urban Development. The grant is awarded to the City of Miami who subcontracts with Citrus to operate the HAND program. On or about August 11, 2011, Lomax sought financial assistance for housing by applying to the HAND program for first and last month rent. Lomax was assigned a case manager, Robert Butler ("Butler"), to process her application. During the application process, Lomax tried to talk to and meet with HAND program administrators about her application instead of working with her case manager. Lomax was able to speak to Maria Bringas ("Bringas"), the Citrus Health Service Coordinator for the HAND Program. Lomax did not like Bringas' demeanor and requested that she speak to her supervisor Jose Garcia ("Garcia"). Lomax talked to Garcia afterwards. Even though Butler was processing Lomax's application, Lomax called Citrus numerous times and felt she should have had more communication with the administration during the process. The HAND program does not have a working site. It is community based and set up whereby applicants work with case managers in the field. The level of assistance provided to participants is based on the income level. The HAND program evaluated Lomax and determined that she was qualified to be approved for the program. Lomax found new rental accommodations from James and Valarie Errol. On or about September 2, 2011, Citrus sent Alberto Abella ("Abella") to inspect Lomax's prospective rental unit for habitability and determined the property was above standards. Abella provided his report, a HUD requirement, to Citrus as part of Lomax's application process. Citrus processed Lomax application expeditiously in less than 10 days and helped Lomax obtain new housing at 212 Northwest 15th Street, Miami, Florida 33136, ("new home") by approving her application and providing her first month's rent so that she could move into the new residence upon eviction and never be homeless. Lomax was transitioned straight from the eviction of the old residence to a stable housing situation with Citrus' assistance of first month's rent for her new home. Lomax was not satisfied with the level of assistance that she received from the HAND program and appealed to receive the last month's rent she had originally requested. As a result of Lomax's first appeal, Citrus denied her request but had its attorney call Lomax's new landlord and negotiated a plan for Lomax to pay her rent for the last month in installments instead of all upfront. Lomax still was not satisfied with her level of assistance and filed a second grievance to the funder, the City of Miami, for more funding. The city denied her request after determining she had not lost any income prior to her eviction. Lomax protested the denial, alleging she had been financially caring for the property where she had been residing by paying the maintenance services like plumbing and lawn care, and that is why she didn't have the savings from her monthly income where she had not paid rent. The City of Miami agreed to reconsider Lomax's appeal for more assistance and requested she provide maintenance receipts to document her maintenance payments. The City of Miami reviewed the receipts Lomax provided and determined Lomax did not provide the right receipts for the City of Miami to provide additional funding to her. It was determined that Lomax did not demonstrate that she lacked financial resources needed to pay her last month's rent. Therefore, the City of Miami denied her grievance appeal. Lomax filed a discrimination case against Citrus with the Commission because she believes that the reason she was not provided last month's rental assistance was because of her race and sex. Lomax felt that Citrus' administration was racist, hateful and offensive, and the administrators did not return her calls during the application process. From October 1, 2010, to October 1, 2011, Citrus provided financial assistance to 1,146 individuals without regard to race, sex, or ethnicity. African Americans make up 576 (51 percent) of the persons served. Hispanic/Latinos make up 554 (49 percent) of the persons served. Females make up 64 percent of the total adults served. A majority of the individuals served have a lower income than the Petitioner. At the time of the hearing, Lomax still resided in her new home she obtained with the financial assistance of first month's rent from the HAND program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief filed by Mattie Lomax in its entirety. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 9th day of July, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Lawrence F. Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Olga Maria Golik, Esquire Citrus Health Network, Inc. 4175 West 20th Avenue, Third Floor Hialeah, Florida 33012 olgag@citrushealth.com Mattie Lomax Apartment Number 1 212 Northwest 15th Street Miami, Florida 33136
The Issue Whether or not the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is entitled to relocate its employee, Perry Kirkland, from an assignment in Jacksonville, Florida, to an assignment in West Palm Beach, Florida.
Findings Of Fact Perry Kirkland, the Respondent, is employed as a beverage sergeant with the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. He has been employed with that division for sixteen years. Within that employment period, he has worked for one year in Orlando, two years in Miami, a period of time in Daytona Beach and then was assigned to Jacksonville, Florida, where he has remained as an employee with the exception of a period of time of 28 days beginning on September 19, 1977, when he was working for the same division in West Palm Beach, Florida. His service in the present type of classification began in 1968 when he was made an enforcement supervisor. His category was later changed to beverage sergeant in 1975. He is a permanent status employee. The underlying nature of the dispute between the Petitioner and Respondent concerns the Petitioner's effort to have the Respondent moved from Jacksonville, Florida, to West Palm Beach, Florida, on a permanent basis, as a condition of the Respondent's employment. The propriety or impropriety of such a requirement may be best understood by discussing the background facts which led to his proposed relocation. In the late fall or early winter of 1976, the Director of the Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, in conjunction with his subordinates, determined that it was necessary to transfer certain personnel from the Marianna office to the Panama City office. The purpose of such transfer was to promote more comprehensive enforcement in the Panama City area which was thought to be necessary, and had as its correlative purpose the removal of employees from the Marianna office, where the workload was not as substantial as that in Panama City. In essence, it has been decided that a full-fledged office would he opened in Panama City, in contrast to a sort of impromptu office that was in existence at the time. To make this change in personnel, it was necessary for the Director of the Division of Alcoholic Beverages and Tobacco to get the approval of the Department of Administration, Division of Budget. Mr. Nuzum and his chief of law enforcement met with representatives of the Department of Administration, Division of Budget, to include Elton Revell, a senior budget analyst. The purpose of this meeting was to present the request for changes in the Marianna and Panama City Offices. Revell advised the Division of Alcoholic Beverages and Tobacco that the Division of Budget could not go along with the "piecemeal" resolution of the problem of a disparity in the efforts of fulfilling the mission of the Division of Alcoholic Beverages and Tobacco. It was Revell's position that it would be necessary to consider the entire state in evaluating such realignment, before any approval could be granted. As an example of his position, Revell specifically mentioned that he thought that Live Oak and Jacksonville were offices that were overstaffed. At the insistence of the Division of Budget, and in keeping with his own analysis of the needs of the Division of Alcoholic Beverages and Tobacco, Mr. Nuzum undertook the task of analyzing the assignment status of the manpower of the division statewide, in an effort to achieve the mandate of his division's function more uniformly. The director had the benefit of certain weekly and monthly reports filed by the field agents in the categories of the division's overall mission. He also had the benefit of an overview of the conditions in the district offices, having made personal visits to the offices around the state. However, it was determined that a more specific study was necessary to get a true picture of the conditions in the district and sub-district offices for purposes of presenting the proposed realignment of personnel to the Department of Administration, Division of Budget. The principal task of doing the study was assigned to John Berry, an auditor with the Division of Alcoholic Beverages and Tobacco. Berry performed a workload study for a period in 1976, which was designed to determine the time that the agents within the district offices were spending in the primary agency functions, which are licensing and enforcement. The result of this study may he found in Petitioner's Exhibit No. 1, admitted into evidence. Berry in compiling his study, examined the various functions being performed in the Jacksonville District Office and the West Palm Peach District Office, which are Districts III and X respectively. It was determined, per his workload study, that although Jacksonville and West Palm Beach had a comparable number of licenses in their district, the number of manhours being spent in the performance of the licensing and enforcement functions of the division were significantly disproportionate. This is borne out by an examination of the Petitioner's Exhibit No. 1, which shows 2,067 licenses in Jacksonville and 2,015 licenses in West Palm Beach, for the various counties in the districts. Although this number is relatively close, manhours in the licensing function in Jacksonville was some 9,907 hours and the licensing manhours in West Palm Beach were 6,683. Likewise, the enforcement manhours in Jacksonville were 10,250, an even greater gap existed for enforcement in West Palm Beach in comparison to Jacksonville, in that the total manhours spent for that function in West Palm Beach was 3,355. These statistics were derived from an examination of the weekly and monthly reports from the personnel within the Jacksonville and Palm Beach offices. The statistics were also borne out by the testimony of the lieutenant in charge of the West Palm Beach office, who indicated that due to a shortage of manpower, the enforcement function in the West Palm Beach area was woefully inadequate. This discussion of the Jacksonville and West Palm Beach district offices leads to further consideration of the efforts made by the Division of Alcoholic Beverages and Tobacco to have their personnel realigned. After Director Nuzum had received the workload study, he had a further discussion of the authenticity of that study, with members of the staff, to include the district supervisors. His communication with the district supervisors had been by sending them a copy of the workload study to solicit their remarks. This study was forwarded to the district supervisors some time in March, 1977. After this discussion, the study was accepted. On June 7, 1977, the director forwarded the reorganization proposal to Mr. J. Jackson Walter, the Executive Director of the Department of Business Regulation, of which the Division of Alcoholic Beverages and Tobacco is a part. This reorganization proposal was forwarded in conjunction with a request made by Mr. Walter. Again, the contents of this proposal are found as Petitioner's Exhibit No. 1, which includes the workload study and a specific indication of how many persons would be reassigned to the various offices. It also includes a copy of the then present manning chart and a copy of the proposed manning chart after the changes. At that point in time, the exact persons who would be moved had not been determined. Moreover, the criteria for moving individuals from one location to another was still under discussion. Finally, it was determined that the basis for movement would be on the grounds of seniority, should there be two possible candidates for relocation and a decision become necessary for selecting one of those two persons. Sergeant Kirkland was in that category, because within the Jacksonville district there were two beverage sergeants and the other beverage sergeant was a more senior member of the division. Therefore, Kirkland was chosen to be relocated from Jacksonville to West Palm Beach. The purpose of this relocation was primarily to promote a more consistent enforcement pattern in terms of hours spent in that function statewide and between Jacksonville and West Palm Beach. A related reason was to allow some assistance to the lieutenant in charge of the West Palm Beach office, in terms of supervision of the field beverage officers of basic rank. A letter was forwarded to the district supervisors and district auditors from Mr. Nuzum, indicating that the realignment of personnel assignments would be on the basis of seniority. Petitioner's Exhibit No. 2 submitted into evidence is a copy of that notification. After determining that seniority would be the criterion for the relocation of personnel involved, the Division Director submitted his proposals through the Department of Business Regulation for transmittal to the Department of Administration for their approval. The Department of Administration approved the reorganization and J. Revell of the Department of Administration informed Floyd L. Dorn of the Department of Business Regulation's personnel office, that this approval had been granted. This approval came about in August, 1977. After receiving the notification of approval, Director Nuzum then began to advise the personnel who were affected by the reorganization in terms of any relocation. As stated before, Sergeant Kirkland was a person involved in the relocation question. Assistant Chief of Enforcement, Ken Ball, on the basis of the seniority standard, determined that Sergeant Kirkland should be transferred from Jacksonville to West Palm Beach. This was approved by Director Nuzum and this particular change was indicated on the reorganization position chart, which was Petitioner's Exhibit No. 3 submitted into evidence. His position number is 00092. The Respondent had filled the 00092 position while working in Jacksonville. His primary function was as supervisor of the enforcement section of the district, with the exception of the period of time in which he was acting in the dual capacity of enforcement supervisor and acting district supervisor. His duties during that latter period are described in Petitioner's Exhibit No. 4 admitted into evidence. This duty description was made by Sergeant Kirkland. When the present district supervisor, Captain Oganowski, took over the permanent job of district supervisor in Jacksonville, Sergeant Kirkland went back to filling the duties of enforcement supervisor. This function entailed the supervision of the enforcement division, as opposed to enforcement and licensing or licensing. Sergeant Kirkland continued to hold this position except for a short period of time in 1975 when he changed positions with the licensing supervisor. This is reflected in Respondent's Exhibit No. 5 admitted into evidence. Respondent's Exhibit No. 6 shows the reassignment of Kirkland back to the job 00092, (enforcement supervisor) in Jacksonville. During his tenure with the division, Sergeant Kirkland has maintained a high standard of performance in his various assignments. The current description of duties and responsibilities which the Respondent is expected to assume in the West Palm Beach office may be found as a part of Petitioner's Exhibit No. 4 admitted into evidence. This function includes the supervision of both enforcement and licensing personnel. When it was determined that Sergeant Kirkland would be sent to West Palm Beach, the Director of the Division of Alcoholic Beverages and Tobacco telephonically communicated the notice of this transfer. It was followed by a letter indicating the transfer, a copy of which is Respondent's Exhibit No. 1 admitted into evidence. The date of the written notification is August 25, 1977. The official report of personnel action setting the effective date of the relocation was dated September 15, 1977, and made the effective date September 19, 1977. A copy of this report of personnel action is Respondent's Exhibit No. 3 admitted into evidence. The type of action indicated on this form is original appointment, with the additional statement entered as "Continued." In fact, the relocation of Sergeant Kirkland is a reassignment within the meaning of Rule 22A-7.08, F.A.C. It is a reassignment because the appointment involved a move from one position in one class to a different position in the same class. The position move, is a move from the 00092 position in Jacksonville, which involves the supervision of enforcement personnel in Jacksonville, to the 00092 position in West Palm Beach, which involves the supervision of both enforcement and licensing personnel. Under the terms of Rule 22A-7.08, F.A.C., Kirkland may not appeal that reassignment. However, since it involves a geographic transfer of more than fifty miles the Respondent is entitled to appeal this decision to the Career Service Commission, in keeping with the authority of Rule 22A-7.09, F.A.C. The Respondent has challenged this relocation by his Career Service Appeal. That appeal has two principal contentions. The first contention concerns the assertion that the transfer does not fall within any of the types of enumerated appointments found in Rule 22A-7, F.A.C. As already shown, this position has been rejected, because the appointment has been determined to be a reassignment appointment. The second contention of the appeal is that any transfer from Jacksonville to West Palm Beach would cause irreparable financial harm and hardship on the Respondent and his wife. In connection with this assertion, Sergeant Kirkland produced evidence that the housing in the West Palm Beach area is more expensive than that in Jacksonville, and that, not withstanding the amount of equity which he might realize from the sale of his Jacksonville property, he still would incur approximately $15,000 additional cost for housing. This housing would not be comparable to his Jacksonville housing, due to the difference in the available amount of property and size of the home itself being smaller in West Palm Beach. The house that he is purchasing in Jacksonville is a four-bedroom, two-bath, two-carport home. The house being contemplated for purchase in West Palm Beach is a three-bedroom, two-bath home. Furthermore, the cost of the mortgage in Jacksonville is $165 and this cost would be exceeded in West Palm Beach even if the equity realized in the sale of Jacksonville home were put toward the down payment. It was also established that the restaurant cost in the West Palm Beach area is greater than that cost in Jacksonville. Sergeant Kirkland's wife testified that she is a hospital operating room nurse who has established a certain amount of seniority in her present employment. She is also only one year away from being able to retire with retirement benefits. If she is required to move, she would lose those benefits and also have to start at the bottom of the seniority list in any new employment in a hospital operating room in West Palm Beach. Finally, the Respondent demonstrated that to move from the Jacksonville community to West Palm Beach would cause him to lose church membership and other community activities in which he is involved. In spite of the degree of hardship which has been demonstrated by the Respondent in his presentation, a review of all the facts and circumstances would justify the Petitioner's action in its reassignment transfer of the Respondent. The action was not a punishment, it was a circumstance where the needs of the Petitioner in this instance, are more compelling than the hardship which will be caused Sergeant Kirkland and his family.
Recommendation It is recommended that the proposed reassignment appointment transfer of the Respondent from Jacksonville to West Palm Beach in the position 00092 he approved and that the appeal by the Respondent challenging this action by the Petitioner be denied. DONE and ENTERED this 30 day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph M. Glickstein, Jr., Esquire 1205 Universal Marion Building Post Office Box 1086 Jacksonville, Florida 32201 Francis Bailey, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32201 Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement 530 Carlton Building Tallahassee, Florida 32304
The Issue The issue is whether Petitioner may revoke Respondent’s permits for six outdoor advertising signs.
Findings Of Fact Everglades Wonder Gardens is a family owned and operated Florida tourist attraction that, for over 60 years, has displayed Florida wildlife and vegetation for the enjoyment of its visitors. David T. Piper, Jr., is the owner of Everglades Wonder Gardens. His grandfather started the attraction and was largely responsible for its management until his death six years ago. Mr. Piper’s father, a cattleman, assumed the management of the business for a short time, but Mr. Piper soon assumed these duties from his father. Like his grandfather, Mr. Piper specializes in working with animals. Since the 1930s, Everglades Wonder Gardens has used roadside signs to advertise to motorists. Everglades Wonder Gardens has often arranged the roadside signs in a series, similar to the method used by the Burma Shave signs of the same era. The Burma Shave signs conveyed the advertising message in a series of short phrases. An example is: "We’ve made Grandpa . . . Look so young . . . His pension board thinks . . . BURMA SHAVE." Mr. Piper’s grandfather cut out the signs with a coping saw. As a little boy, Mr. Piper helped his grandfather make and install some of the signs. The signs are slatted to allow the wind to pass through them without damaging the signs. The wooden signs’ simple construction facilitates repair and replacement. They are affixed to two poles made of lighter pine that is nearly as hard as petrified wood and resists decay and breakage. The signs are separated from the highway by canals. Mr. Piper or his employee services the sign by placing a small generator and ladder in a 12-foot jon boat and paddling the boat to the base of the sign. With the aid of the ladder and a block and tackle, Mr. Piper or his employee gets to the top of the sign, unbolts the two lag bolts that attach the sign to the poles, repairs or replaces the sign, and leaves the site. Following an inspection by one of Petitioner’s representatives, Petitioner issued Respondent six Notices of Violation--Removed Sign Failure to Display Permit Tag. Five of the notices are for signs that have been destroyed, and one notice is for a sign not displaying the permit tag. All the signs were on U.S. Route 41 in Collier County. Petitioner issued Notice No. 1-03-790 on August 1, 1994, for a sign located 1500 feet north of State Road 29 at milepost 32.63. This notice is the basis of DOAH Case No. 97- 4571T. The relevant part of the notice states: Our records indicate that the outdoor advertising sign identified below no longer exists at the site identified in the permit application. This is a nonconforming sign and MAY NOT BE RE-ERECTED. Your outdoor advertising permit will be revoked by the Department within thirty (30) days from receipt of this notice of violation pursuant to Section 479.08, Florida Statutes. You may request an administrative proceeding as outlined below. However, the filing of a request for an administrative proceeding will not stay the revocation of the permit(s). The referenced permit tags must be returned to the Department for cancellation. Notice No. 1-03-785 applies to a sign located 1000 feet north of State Road 29 and is the basis of DOAH Case No. 97-4572T. Notice No. 1-03-788 applies to a sign located 500 feet north of State Road 29 and is the basis of DOAH Case No. 97-4573T. Notice No. 1-03-787 applies to a sign located 200 feet north of State Road 29 and is the basis of DOAH Case No. 97-4574T. Notice No. 1-03-792 applies to a sign located 4.16 miles south of State Road 951 and is the basis of DOAH Case No. 97-4575T. Petitioner issued all of these notices on August 1, 1994, and they all contain language identical to that quoted above. By Notice of Violation--Signs for which Permits Have Been Issued, also dated August 1, 1994, Petitioner asserted that a sign located four miles south of State Road 951 failed to display a valid permit tag, in violation of Section 479.07(5)(a). This notice, which is Notice No. 1-03-793, states: YOU ARE HEREBY NOTIFIED that, as a result of the above, Permit No(s). AZ104-25 will be revoked by the Department pursuant to Section 479.08, Florida Statutes, unless within 30 days after receipt of this notice, the above violation is corrected and written notice of compliance has been delivered to [Petitioner]. Mr. Piper did not respond to these notices. In fact, the missing signs were damaged by Hurricane Andrew in late August 1992. A few days after the hurricane passed, Petitioner, by letter dated August 28, 1992, advised Everglades Wonder Gardens that the five missing signs had been destroyed, and "[o]ur records indicate these to be nonconforming signs and therefore cannot be rebuilt." The letter explains that Rule 14-10.007(2)(c), Florida Administrative Code, defines a "nonconforming sign" as one destroyed by an Act of God and defines "destroyed" as a sign for which the new materials’ cost of reerection exceeds 50 percent of the pre-destruction, depreciated value of the sign’s structural materials. The letter, which gives Everglades Wonder Gardens a right to demand a hearing within 30 days of the notice, concludes: "In either case, if you fail to comply within the thirty (30) day period, the described violation shall be considered true and the Department of Transportation reserves the right to take such action as the law permits without further action." By letter dated October 1, 1992, Mr. Piper responded to Petitioner’s letter. His letter states that the sign company was backed up due to extensive hurricane damage in the area and that, "since every letter is cut out and nailed in it [apparently the replacement work] is very costly . . .." He enclosed a bid from a Naples sign company of $1282.07 per sign. By letter dated October 6, 1992, Petitioner responded to Mr. Piper’s letter. This letter states that Everglades Wonder Gardens could repair or reerect the five signs if the cost did not exceed $65 per sign. Mr. Piper appears to have taken no further action after receiving the letter of October 6. He was still distressed by the death of his grandfather, whom he describes as the family "patriarch." He had to deal with damage from Hurricane Andrew. He was an expert on animals, not business. Mr. Piper or any of his employees can reerect the signs for less than $65 each. He estimated at the hearing that he could reerect the signs for $30 each, including materials and labor. Mr. Piper’s sole explanation for failing to respond to the sixth notice, for the missing tag, is distress due to his grandfather’s death.
Recommendation It is RECOMMENDED that the Department of Transportation enter a final order revoking Permit AZ104-25, dismissing the other five notices of violation, and notifying Everglades Wonder Gardens that it has 30 days from the date of the order to reerect the five signs in a manner and at a cost in compliance with applicable law. DONE AND ENTERED this 5th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 David T. Piper, Jr. Everglades Wonder Gardens Post Office Box 292 Bonita Springs, Florida 33959 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary c/o Diedre Grubbs Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, T L Consultants, Inc., is a corporation which manages health care facilities. Vettraino Associates Investment Company owns 90 percent of T L Consultants and Grace LaRocca owns the other 10 percent. Vettraino Associates Investment Company is owned in trust by the children of Henry Vettraino, Sr., who set up the trust. Louis Vettraino, son of Henry Vettraino, Sr., is one of the individual trustholders of Vettraino Associates Investment Company and acts as president of T L Consultants, Inc. Grace LaRocca acts as vice president of T L Consultants. In 1980, W. S. Samford, Residential Services Director for District 8 of the Department of Health and Rehabilitative Services was overseeing the implementation of the cluster concept to initiate and aid in the development of Intermediate Care Facilities for the Mentally Retarded (ICF/MR's) in his district. At the request of his supervisor, Mr. Samford returned a call from a Mr. Bundschu. Mr. Bundschu, who dealt in real estate and was involved in the construction company of Bundschu, Bundschu, Kraft and Vettraino, knew of the need for ICF/MR's and indicated he had some Michigan investors who were interested in starting up such a facility. Through Mr. Bundschu, Mr. Samford met with Louis Vettraino and Henry Vettraino, Sr., who indicated that they were interested in building and operating an ICF/MR. Subsequently, Louis Vettraino contacted Maurice Reisman concerning ownership of the facility. Mr. Reisman indicated he would be interested in owning such a facility and, together with Grace LaRocca and Louis Vettraino, he met with Mr. Samford to discuss the application for a certificate of need (CON). Prior to applying for a CON or construction of the facility, it was understood by all of the parties that Henry Vettraino's construction company would build the facility and lease it to Maurice Reisman who would contract with T L Consultants for management services. Louis Vettraino was aware from the beginning that a management firm could not own a facility and charge a fee. He acknowledged that the management firm had sought out the owner instead of the owner seeking out a management firm in the open market. Concerned about the propriety of the management structure which was contemplated, Mr. Reisman wrote Mr. Samford in February of 1981 and asked for a determination by HRS as to whether the proposal met the guidelines for reimbursement. In response to his inquiry, Mr. Reisman was notified that the Department of Health and Rehabilitative Services considered the structure to illustrate a "control" situation, subject to reimbursement limitations. In applying for the CON for the facility, Maurice Reisman relied heavily on the financial backing of Henry Vettraino, Sr. Although Mr. Reisman was applying for a CON for a 1.2 million dollar facility (later increased to 2.7 million dollars), he had only $142,000 in assets. To qualify for the CON, the assets of Henry, Sr., and Jennette Vettraino were included in both the original and amended CON applications. In the minutes of the Lee County Industrial Authority monthly meeting dated June 10, 1982, the bond issue for financing the facility is referred to as the "Vettraino bond issue." It was noted in the CON application that T L Consultants would be the management firm. The CON application was not prepared by Mr. Reisman, but by Grace LaRocca as Operations Director. Ms. LaRocca, a principal in T L Consultants, indicated in the CON application that she was on the Board of Directors of Sandy Park Rehabilitation Center, the corporation that Mr. Reisman formed to own the facility. In addition, when application was made for an amended CON, the request for expedited review listed T L Consultants as a Principal Party in the application. While waiting for the new facility to be built, Mr. Reisman and T L Consultants entered into an agreement to temporarily occupy the existing state facility. Concerned about his responsibilities, Mr. Reisman contacted Mr. Samford for clarification of the agreement. Mr. Samford indicated that although it seemed that Mr. Reisman was not in direct "financial interest" and control of the management firm, as holder of the CON, he was responsible for performance in meeting licensure requirements. This was a separate issue from the question of control for reimbursement purposes and was not a change in the Department's position on that issue. Notwithstanding the original opinion of the Department of Health and Rehabilitative Services, Mr. Reisman made application to the Medicaid Cost Reimbursement Unit (Medicaid) for reimbursement of management fees to be charged by T L Consultants. Mr. Reisman reiterated the fact that T L Consultants had contacted him and acknowledged that he had not sought competitive bids for management services. A proposed management agreement was submitted to Medicaid but was rejected because it had no termination clause. When a new management contract was submitted , the management fee had jumped from 7.5 percent to 10 percent without explanation. In submitting proof of Sandy Park's financial ability to Medicaid, a $100,000 line of credit from Lee County Bank was indicated. Investigation into that line of credit revealed that Henry Vettraino, Sr., had co-signed the loan for Maurice Reisman. These facts, along with the fact that Maurice Reisman had never previously owned a nursing home, the fact that T L Consultants had arranged the entire operation, and the facts surrounding the financing and involvement of Henry Vettraino, Sr., resulted in the denial of the management fees by Medicaid.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that management fees over and above the actual costs of services to T L Consultants, Inc. be allowed for reimbursement by Medicaid to Sandy Park Rehabilitation Center. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1984. COPIES FURNISHED: William B. Fitzgerald, Esquire Sandra J. Frank, Esquire Fitzgerald, Hodgman, Kazul, Rutledge, Cawthorne & King 1000 First Federal Building Detroit, Michigan 48226 Theodore E. Mack, Esquire Assistant General Counsel Department of HRS 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301
