Findings Of Fact Fort Lauderdale Retirement Home is an Adult Congregate Living Facility (ACLF) situated at 401 Southeast 12th Court, Fort Lauderdale, Florida 33316 and was licensed as such during times material herein. On July 19, 1985, an appraisal visit was conducted by personnel from Petitioner's Miami Office of Licensure and Certification to determine compliance with applicable rules and regulations for ACLF's. Petitioner's appraisal and survey team made two requests to the facility's administrator, Jacqueline Kidwell, to examine the contents of a medication cabinet on the premises and was denied permission to do so. One of Petitioner's appraisal team surveyors, Jane Bavetta, observed what appeared to be medication in two amber colored jugs located in the bottom of a cabinet in the administrator's office, which appeared to be the type container medication is usually stored. (Petitioner's Exhibit 1). Petitioner has advised Respondent that it intends to levy an administrative fine in the amount of three hundred dollars ($300). Another of Petitioner's appraisal surveyors, who is no longer employed by Petitioner Elizabeth Mazlin, also made a request of Ms. Kidwell to inspect the cabinet in the administrator's office which she suspected to contain medication and was denied permission to do so by Ms. Kidwell.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, Department of Health and Rehabilitative Services, Office of Licensure and Certification, enter a Final Order imposing a three hundred dollar ($300) fine against Respondent, Fort Lauderdale Retirement Home, Inc. payable to Petitioner within thirty (30) days after entry of Petitioner's Final Order. RECOMMENDED this 3rd day of August, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 3rd day of August, 1987. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 86-1103 Rulings on Petitioner's Proposed Findings of Fact Paragraph 2 first sentence rejected as irrelevant to the issues posed. Paragraph 4 rejected as argument and not a finding of fact. Paragraph 5 rejected, irrelevant in view of the finding that Respondent's agents did not allow Petitioner's surveyor an opportunity to inspect the premises and the administrative fine was levied on that basis. Rulings on Respondent's Proposed Recommended Order 1. Respondent's position is set forth in a letter dated may 11, 1987. Inasmuch as Respondent's position is in the form of legal argument including their feelings, position on the credibility of witnesses and a concluding recommendation that the charges herein be dismissed, Respondent's Proposed Recommendation, while considered by the undersigned in preparation of the Recommended Order, is not ruled upon point by point in the Appendix herein. COPIES FURNISHED: Leonard T. Helfand Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Jacqueline H. Kidwell Administrator Fort Lauderdale Retirement Home 401 Southeast 12th Court Fort Lauderdale, Florida 33316
Findings Of Fact At all times relevant hereto Bayview Superior Retirement Home (Bayview or Respondent) was licensed by Petitioner as an Adult Congregate Living Facility. At the time of this hearing there were ten residents at Bayview. These residents ranged in age from about 60 upward. Several of these residents are senile or partly so; and many are incapable of taking care of their personal needs such as taking their medication, bathing and dressing themselves, visiting their doctors' offices, or going out of Bayview unescorted. Jenny D. is a resident at Bayview. She easily becomes disoriented and has a propensity for wandering to other residents' rooms and for leaving the facility and walking downtown. On several occasions Jenny D. was picked up by the police walking on the street in heavy traffic and was unable to give her name or where she lived. To deter this practice, and at the prodding of Petitioner, Bayview installed a door alarm system to alert the attendants on duty of a resident's attempt to slip out for any reason. On only one occasion since the installation of this alarm was Jenny D. successful in slipping away and having to be returned by the police or be picked up by someone from Bayview and brought back. On July 6, 1983, approximately one week following one of Jenny D.'s sojourns from Bayview, Rebecca Falzone, a licensed specialist for Petitioner, visited Bayview to inspect the home and records. A review of Jenny D.'s record did not reveal an incident report on Jenny D.'s escapade the previous week. At the time of this visit the Administrator, Gordon Groundwater, was not present. Groundwater had prepared the incident report but had removed the handwritten copy from the file to be typed. A copy of the incident report was submitted as Exhibit 8. On or about June 15, 1983, after going to bed, Jenny D. got out of bed and wandered to other residents' rooms until she was taken back to her bed by an attendant. Jenny D. resisted the efforts to put her into bed and she had to be restrained to get her back to bed. This consisted first of holding Jenny D.'s arms then placing her in a jacket-type restraint to keep her in bed until she settled down. During this restraining process, Jenny D. suffered bruises on her arms (Exhibit 2). Terry Orme worked as a handyman at Bayview from July to mid-September, 1983, at which time he was fired. Orme occupied an apartment owned by Bayview as part of his compensation for his services. Upon being terminated, he was told to vacate the apartment, but did not leave until evicted by court order in October. After his termination, Orme reported to Respondent an incident involving one resident who had nearly choked on a nylon hose put on her hands and arms to deter the resident from sucking her fingers. In sucking her fingers through the hose, she sucked part of the hose down her throat. Orme also testified that he put chains on doors to keep residents from wandering into other residents' rooms. On one occasion during a visit to Bayview by Frederick Timmerman, M.D., who serves on the Ombudsman Council with Bayview as his responsibility, no menu was posted. Dr. Timmerman attempted to talk to the residents at Bayview but got no intelligent answers from any of them. On another occasion during a visit to Bayview by one of Petitioner's employees, the posted menu had not been changed to correspond with the meal being served. Gail Silva worked at Bayview on Saturday, August 27, 1983, from 7:00 a.m. until 4:36 p.m. She was hired by Mrs. Siess and at 4:36 p.m. when Mrs. Siess returned to Bayview Mrs. Silva quit, quite angry because she had told Mrs. Siess she needed to leave at 3:00 p.m. to take care of her young children, and Mrs. Siess was not present to relieve her at that time. Upon reporting for work that Saturday morning, Mrs. Silva was taken on rounds by Mrs. Siess. They went to a room occupied by Hanna, an incontinent resident who was taken to the bathroom and hosed down by Mrs. Siess. Liquid detergent was used by Mrs. Siess to wash the resident's genital area. No full bath was administered. Later that day Mrs. Silva bathed another resident who had diarrhea and was wearing Pampers diapers and loose underwear. A bathing schedule was posted but Mrs. Silva did not know if anyone was scheduled for a bath the one day she worked. Mrs. Silva also observed Mrs. Siess give medications to some residents. For some, she put the pill in a bowl and provided them with water to wash down the pill. For one resident, Mrs. Siess put the medication in some pudding which was given to the resident. Mrs. Silva also testified that one resident had an infected foot, on which Silva cut out an ingrown toenail; that she cut the fingernails of several residents; that she assembled them in the afternoon to discuss recreation with them and several requested music and dancing; that no recreation activities such as radio, group games, etc., were provided; that the t.v. provided was a pastime and not an activity; and that Mrs. Siess asked her if she knew how to change a catheter. Mrs. Silva's medical education consists of a course in home health training which she took from a nursing agency, but she has done volunteer health work in the past. She knew that only a licensed nurse is authorized to change a catheter and was offended at being asked if she knew how to change one. During an evening visit to Bayview by Mrs. Falzone, residents told Mrs. Falzone around 9:00 p.m. that they were hungry. The evening meal had been served at 5:00 p.m. and breakfast was scheduled at 8:00 a.m. the next morning, more than 14 hours after the dinner meal. The medicine chest in which medications are stored is a metal box which opens from the top. There is no handle on the door (top) of this chest, and on several occasions when inspectors were at Bayview the chest was not locked. The chest was kept in the kitchen, to which residents were barred, and either a knife or screwdriver was needed to open the unlocked chest. Even with the key, it is difficult to open the chest without applying the levering effect of a knife or screwdriver to lift the door of the chest on its hinges. All witnesses agreed that few, if any, residents had the dexterity to open the unlocked medicine chest; that the residents did not have access to the chest located in the kitchen; and that a large percentage of these residents could not take their medications unaided, but needed to be given their proper medications by one dispensing the medications to them. Considerable evidence was submitted that many of the residents at Bayview were unable to safely leave the facility without close supervision; and that Jenny D. "walked away" on numerous occasions before the door alarm system was installed, and one time after it was installed. Respondent is also charged with having doors locked and wired shut to keep residents from surreptitiously leaving the facility and thereby subjecting themselves to danger. The evidence in this regard was contradictory, with one witness testifying the one day she worked at the facility one outside door was wired shut, while the Administrator of the facility categorically denied any door was so wired. Since neither of these witnesses' testimony is deemed more credible than the other, the evidence on this charge is in equipoise. Terry Orme also testified that on one occasion he, at the request of Mrs. Siess, signed a name to a contract as sponsor, thereby forging the signature. A copy of this contract was not produced and no other evidence regarding this incident was presented. However, Orme's testimony in this regard was not contradicted. Residents of Bayview Superior Retirement Home are happy at the facility and their relatives are satisfied with the facility and the care given to these residents. Several relatives of residents at Bayview phoned and wrote to the Ombudsman responsible for this facility complaining about having to move their relatives from this facility.
The Issue Whether Respondents Alfred Homes and Felicia Homes Foster1 subjected Petitioner Nidia Cruz to discriminatory housing practices based on Ms. Cruz’s national origin, in violation of the Florida Fair Housing Act, chapter 760, part II, Florida Statutes (FHA).
Findings Of Fact Ms. Cruz, who is Hispanic in national origin, rented and occupied a mobile home at lot #9 in Pine Grove Trailer Park (Pine Grove), in an unincorporated area adjacent to Fernandina Beach, Florida. Respondent Alfred Homes owns Pine Grove. His daughter, Respondent Felicia Homes Foster, oversees the business operations of Pine Grove. Ms. Foster lives in a mobile home at Pine Grove, and owns two other mobile homes that are rental units. Ms. Cruz rented one of these mobile homes from Ms. Foster. The remaining mobile homes in Pine Grove are owner-occupied, with those owners renting their lots from Respondents. Neither party could produce a lease between Respondents and Petitioner concerning the mobile home. Based on the parties’ testimony and other evidence presented at the final hearing, the undersigned finds that Petitioner’s tenancy for the mobile home commenced on or about October 15, 2016, for an approximately one-year term ending November 30, 2017. Respondents charged a $500 security deposit, and $600 per month for rent, which included water and sanitary sewer that Pine Grove’s well and septic system provided. Ms. Cruz was responsible for electrical services to the mobile home. After the expiration of the lease on November 30, 2017, the parties did not renew the lease, and Ms. Cruz continued to occupy the mobile home under a month-to-month agreement, until she vacated the mobile home on or about September 29, 2018. Ms. Cruz sought out Respondents to rent a mobile home, as her previous landlord had terminated the lease for her previous residence because of her unauthorized possession of pets. Ms. Foster informed Ms. Cruz that she had an available mobile home to rent, but as the previous tenants had just moved out, she needed to make repairs to the mobile home before it could be occupied. Ms. Cruz requested to move in immediately while the Respondents repaired the mobile home, because she and her daughter were, at that point, homeless. Respondents employed Michael Hamilton to repair and provide maintenance work to the mobile homes in Pine Grove. Mr. Hamilton worked for Respondents on weekends, as he had a full-time job during the week. Within approximately one month of Ms. Cruz moving into her mobile home, Mr. Hamilton made the needed repairs to its interior, including replacing the refrigerator, carpet, commode, and door locks. After moving into the mobile home, Ms. Cruz was involved in an incident at a nearby McDonald’s restaurant with an employee. That employee, Theresa McKenzie, was a tenant of Pine Grove and resided in lot #10, which was adjacent to Ms. Cruz’s mobile home. Ms. Cruz and her daughter, Ms. Burgos, complained to Ms. Foster that Ms. McKenzie and her co-tenant Earnest Roberts made loud, harassing, and defamatory statements about Ms. Cruz and her national origin. Respondents, individually, warned Ms. McKenzie and Mr. Roberts to refrain from calling Ms. Cruz and Ms. Burgos names. The feud between Ms. Cruz and Ms. McKenzie was interrupted when Ms. Cruz was arrested on November 18, 2016. Ms. Cruz was charged with, among other offenses, aggravated stalking arising from a violation of an order of protection and filing a false police report. The victim of these offenses was a previous landlord from whom Ms. Cruz had rented a room. While in pretrial detention, a psychologist evaluated Ms. Cruz, and determined her to be incompetent to proceed in the criminal proceeding. The trial court subsequently committed Ms. Cruz to a mental health facility, and she pled guilty to filing a false police report. The trial court sentenced Ms. Cruz to a split sentence of two years with special conditions, which included enrollment into the mental health court program. After acceptance into the mental health court program, Ms. Cruz was released from the Nassau County Jail. On February 13, 2017, Ms. Foster hand delivered a letter to Ms. McKenzie and Mr. Roberts, which warned them that if they did not refrain from verbal attacks against Ms. Cruz, Respondents would evict them from Pine Grove and obtain a no trespassing order. Chris Cummings, who was a Pine Grove resident at lot #4, testified he was aware of the incident at McDonald’s involving Ms. Cruz and Ms. McKenzie, as his wife also worked at that McDonald’s. Mr. Cummings observed, but could not hear, Ms. Cruz and Ms. McKenzie “squaring off” against each other. Mr. Cummings recounted that he observed Ms. Cruz lift her skirt and bend over, in a manner that he interpreted to mean that Ms. McKenize could kiss her rear end. In August 2017, Hurricane Irma caused a large branch from a pine tree to fall on top of Ms. Cruz’s mobile home, puncturing the exterior metal skin of the mobile home’s roof, which allowed water to intrude into the interior of the mobile home. The water intrusion caused significant damage to the ceilings, walls, and floor coverings of the mobile home. It is undisputed that Hurricane Irma inflicted serious damage to the mobile home, and that Ms. Cruz resorted to using buckets to catch water leaking from the roof. Shortly after Hurricane Irma passed, Mr. Hamilton placed a tarp over the top of the mobile home to stop the water intrusion. He then began repairs to Ms. Cruz’s mobile home over the course of several weekends, which included removing and replacing damaged sheet rock, patching the metal roof, and installing new carpet and linoleum flooring. Mr. Hamilton testified that Ms. Cruz, on several occasions, frustrated his ability to complete these repairs by denying him entry into the mobile home. Ms. Cruz presented evidence that her mobile home required extensive repairs upon moving in, and that it sustained severe damage from Hurricane Irma. However, she presented no credible evidence to rebut the testimony that Mr. Hamilton, on behalf of Respondents, completed all necessary repairs. Additionally, Ms. Cruz presented no credible evidence that Respondents treated her differently than other Pine Grove tenants in responding to and completing any necessary repairs to other tenant’s mobile homes. Neither the passage of time, incarceration, nor the trauma of Hurricane Irma, ended the feud between Ms. Cruz and Ms. McKenzie. The Nassau County Sheriff’s Office had regular call-outs to Pine Grove regarding Ms. Cruz and Ms. McKenzie. The feud escalated when, on January 4, 2018, Ms. McKenzie filed a petition for an injunction for protection against Ms. Cruz, and the circuit court entered a temporary injunction that same day. The next day, January 5, 2018, Ms. Cruz and Ms. Burgos each filed petitions for an injunction for protection against Ms. McKenzie. Then, on January 16, 2018, Ms. Cruz sought a petition for an injunction for protection against Mr. Roberts, which the circuit court granted, as a temporary injunction, that same day. On January 17, 2018, the circuit court held a hearing on the petition against Ms. Cruz and Ms. Burgos’s petition against Ms. McKenzie, and on January 18, 2018, granted a final injunction in each case. On January 18, 2018, Ms. Burgos filed a petition for an injunction for protection against Mr. Roberts, which the circuit court denied. On January 24, 2018, the circuit court heard Ms. Cruz’s petitions against Ms. McKenzie and Mr. Roberts; the circuit court denied the injunction against Ms. McKenzie, but granted a final injunction against Mr. Roberts. On January 29 and February 9, 2018, the circuit court entered orders to show cause in Ms. Burgos’s injunction against Ms. McKenzie, and after hearing argument, dismissed them on February 15, 2018. Despite these multiple injunction proceedings, Ms. Cruz and Ms. McKenzie continued their feud. On January 22, 2018, Ms. Cruz was arrested for violation of the protection order in favor of Ms. McKenzie. Ms. Cruz’s arrest triggered a violation of her felony probation. While in pretrial detention, she was again evaluated by a psychologist, who determined her to be incompetent to proceed. The circuit court committed Ms. Cruz to a mental health facility. She subsequently returned to court and pled guilty to a violation of probation. The circuit court sentenced Ms. Cruz to a split sentence of time served, reinstated probation, and extended probation with an added special condition for 12 months. Ms. Cruz was released from the Nassau County Jail on July 27, 2018. On July 31, 2018, Ms. Foster hand delivered a notice to terminate the lease, stating that the lease will end on August 31, 2018, and that Ms. Cruz should vacate the mobile home no later than September 1, 2018. Ms. Cruz and Ms. Burgos continued to hold over in the mobile home until they moved out on September 29, 2018. Ms. Cruz failed to provide any credible evidence that Respondents, or Mr. Hamilton, made any disparaging statements to Ms. Cruz regarding her national origin. Ms. Cruz failed to provide any credible evidence that Respondents treated her less favorably than other tenants with regard to her feud with Ms. McKenzie. Put differently, Ms. Cruz failed to provide any credible evidence that Respondents treated any other tenant disputes differently than the way they treated the dispute between Ms. Cruz and Ms. McKenzie. Ms. Foster attempted to intervene on behalf of Ms. Cruz to end the feud, when she hand-delivered the letter to Ms. McKenzie on February 13, 2017, that threatened eviction. The credible evidence presented demonstrated that Ms. Cruz often created or exacerbated this feud, which ultimately led to her incarceration. Ms. Cruz failed to provide any credible evidence that Respondents’ decision to end the month-to-month holdover of the lease of the mobile home was based on her national origin, or that Respondents treated Ms. Cruz differently than any other tenants who resided at Pine Grove in ending the month-to-month holdover of a lease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Nidia Cruz’s Petition for Relief. DONE AND ENTERED this 1st day of July, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 1st day of July, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Nidia Cruz Post Office Box 1923 Callahan, Florida 32011 (eServed) James Pratt O'Conner, Esquire James Pratt O'Conner, P.A. Post Office Box 471 Fernandina Beach, Florida 32035 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of coercion or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner Maria Thornhill ("Thornhill") owns and lives in a unit in the Admiral Farragut Condominium Apartments. Respondent Admiral Farragut Condominium Association, Inc. ("AFCA"), manages the property of which Thornhill's condominium is a part. This case continues a dispute between Thornhill and AFCA which began in 1997, when Thornhill——without first securing AFCA's permission——installed three wooden steps leading from her rear balcony down to a patio located about 30 inches below. AFCA disapproved of the steps and directed Thornhill to remove them, which was done long ago. In the past, Thornhill has alleged, among other things, that AFCA and its individual directors unlawfully discriminated against her in denying her many requests to reinstall the steps, which she claims are needed as a reasonable accommodation for her handicap.2 Consequently, the parties have been pitted against each other for years in one legal proceeding after another, in various forums including DOAH. Thornhill has lost many battles in this protracted litigation——and consequently been ordered to pay tens of thousands of dollars in sanctions, court costs, and attorney's fees. Still, she presses on. In this case, Thornhill argues, as she has for more than a decade, that she needs to attach steps to her rear balcony because she is physically unable to traverse the 30 inches which separate the balcony from the ground and hence would be trapped if a fire were to block both of the unit's two doors to the outside. Not for the first time, Thornhill alleges here that AFCA discriminated against her on the basis of handicap when it denied her request(s), the most recent of which was made in January 2004, for approval of the steps. In addition to her claim involving the steps, Thornhill alleges that AFCA has discriminated or retaliated against her, in some unspecified way(s), in connection with a boat slip, which she is, evidently, "next in line" to rent, once the lease expires under which another unit owner currently enjoys the right to use the slip. Finally, Thornhill contends that, in its efforts to collect the various money judgments it has been awarded, AFCA has retaliated against her unlawfully. Determinations of Ultimate Fact With regard to the steps, Thornhill presented no evidence suggesting that such a modification is reasonable, nor any proof that installation of such steps is necessary to ameliorate the effects of her particular handicap. There is no evidence that any of AFCA's decisions concerning the boat slip were motivated in any way by discriminatory animus directed toward Thornhill. There is likewise no evidence that AFCA ever undertook to execute or otherwise enforce the judgments it has obtained against Thornhill because of discriminatory animus. In sum, there is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination, coercion, or retaliation could possibly be made. Ultimately, therefore, it is determined that AFCA did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AFCA not liable for housing discrimination and awarding Thornhill no relief. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 January, 2010.
