The Issue The issue in this case is whether respondent should be dismissed from her position as a teacher for the reasons given in the amended notice of proposed dismissal dated January 20, 1995.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Gwendolyn M. Beeks, was a classroom teacher employed by petitioner, Duval County School Board (Board). When the events herein occurred, respondent was employed at Pine Estates Elementary School in Jacksonville, Florida. Between July 9, 1994, and August 22, 1994, respondent had access to the bank account of the Pine Estates Elementary School Safety Patrol. Based on a complaint by parents of patrol members, an investigation of the bank account was conducted by the state attorney. On November 14, 1994, the state attorney filed an information against respondent charging her with violating Section 812.014(c), Florida Statutes, a third degree felony. Specifically, respondent was charged with the theft of approximately $1,600.00 from the Safety Patrol bank account. On December 15, 1994, respondent entered a plea of guilty to the charge. The circuit court withheld adjudication, placed her on eighteen months probation, required restitution, payment of costs and a letter of apology, and ordered that she perform fifty hours of public service. On January 20, 1995, the Board issued its amended notice of proposed dismissal. Respondent has been suspended without pay since that time.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Duval County School Board enter a final order discharging respondent as a classroom teacher for violating Sections 4(a) and (d) of the Duval County Teacher Tenure Act, as amended. The charge that she has violated Section 4(b) should be dismissed. DONE AND ENTERED this 11th day of December 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 11th day of December, 1995. COPIES FURNISHED: Dr. Larry L. Zenke Superintendent of Schools Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207-8182 Thomas E. Crowder, Esquire 600 City Hall 1300 East Bay Street Jacksonville, Florida 32202 Ms. Gwendolyn M. Beeks 9801 Baymeadows Road, Number 156 Jacksonville, Florida 32202 Honorable Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, I make the following: The Respondent, Gerald W. Conrad, is a registered building contractor who holds license No. RB 0016374. The projects involved herein are situated in Pinellas County, Florida. Pinellas County has a local Construction Industry Licensing Board which declined to prosecute this matter when it was referred to the local board for its determination as to whether or not any disciplinary action should be taken against the Respondent, Gerald W. Conrad. Jerry Taylor, an investigator with the Board since approximately February of 1977, investigated the Board records as they relate to the Respondent. Evidence reveals that on May 1, 1977, Respondent Conrad d/b/a Spanish Grants, Inc., effected a license renewal and during July of 1977, Respondent requested and was granted permission to change the contracting entity involved herein from a corporate entity to a sole proprietorship. Peter M. Lipman, the Executive Director of the Pinellas County Construction Licensing Board, testified that the complaint allegations concerning the Respondent were presented to the Board informally and that the Board, pursuant to its rules and regulations, conducted a preliminary inquiry into the matter and decided to defer to the jurisdiction of the State Board. Lipman testified that he, as the official custodian of the local Board records, found no evidence of any registration or certification of Respondent with the local Board either as an individual or as a corporate entity. Jack Harris and his spouse, on March 14, 1977, entered into a contract with the Respondent to construct a home for a price of $44,000.00. On March 15, 1977, Harris tendered a $1,000.00 deposit to a Mr. Charles Pitcock, Sales Director for the Respondent, as security for the land on which the home was to be constructed. (See Petitioner's Exhibit No. 2.) Shortly thereafter, Mr. Harris visited the local offices of First Federal Savings and Loan Association of Tarpon Springs and arranged permanent financing. According to the terms of the agreements entered into with the Respondent, approximately $30,000.00 was to be given the contractor at the completion of construction, with approximately $12,000.00 to be financed. During the early days of April, 1977, Mr. Harris received a call from Respondent asking that approximately $7,800.00 be paid in order to commence the construction of his home. The money was forwarded to Respondent on April 8, as requested. On May 18, the Harrises received a request from Respondent for $7,200.00 for nest connected with the pouring of the slab and for plumbing, which request was honored on May 24. On May 28, Respondent requested an additional $7,000.00 for payments toward the construction costs in erecting the lintels. On June 1, 1977, the Harrises sent Respondent a check for $7,000.00, as requested. The Harrises were then living in Rego Park, New York, and were making efforts to retire to the home that the Respondent was constructing in Pinellas County, Florida. On June 1, the Harrises received a letter from Respondent's Sales Director (Pitcock) who advised that he was leaving the Respondent's employ. Mr. Pitcock also outlined in that letter several reminders and recommendations to the Harrises, such as continual monitoring of the construction progress; advising them to make their homeowner's insurance effective when exterior walls were erected; confirming closing dates with builders before appearing for same and a general offer to be of service when he could provide same. (See Petitioner's Exhibit No. 3.) All payments to Respondent from the Harrises were by check. (See petitioner's Composite Exhibit No. 4.) At about this same time, the Harrises became concerned about their reports of the lack of progress toward the construction of their home and Mr. Harris made a trip to Pinellas County from New York. Mr. Harris was able to arrange a meeting with Gerald Conrad and William Walker, Respondent's President and Vice President respectively. This meeting centered around the Harrises' inability to obtain a deed to the property they had purchased. On June 13, the Harrises filed an official complaint with a Mr. Anderson of the Consumer Affairs Department of Pinellas County. After the Harrises had paid approximately $15,000.00 toward the purchase price of their home and was unable to get a clear deed to the property, they ceased making further payments and Respondent has not refunded their money. The house was being constructed in a subdivision known as Oakleaf Village on Lot. 24, Block K, Oakleaf Village Unit 6. Further developments revealed that on October 26, 1976, the Respondent by its President, Gerald W. Conrad, executed a warranty deed to Richard G. and Kathleen Gushwa, that was the same property which the Harrises had agreed to purchase from the Respondent. (See Petitioner's Exhibit No. 6.) Richard Gushwa, an employee of the City of Clearwater, testified that he contracted with the Respondent to construct him a home for a total purchase price of $44,500.00. Initially the Gushwas paid the Respondent a $200.00 binder and thereafter an $8,400.00 start- up fee. The $8,400.00 was paid on October 25, 1976. When construction had not commenced as scheduled during January, 1977, the Gushwas arranged a meeting with their attorney and Messrs. Conrad and Walker, at which time the Respondent requested an additional $3,500.00 to construct the home which the Gushwas had contracted for in October of 1976. The parties were unable to resolve their differences and the matter ended, with the Gushwas paying no more money toward the contract price. During late April of 1977, Mr. Gushwa noticed a building permit erected on his property and later learned that the house was being constructed for the Harrises. During the first week of April, 1978, the Gushwas were able to sell the lot and abandoned building "as is" to Thomas and Sandra Hanson for $10,500.00. (See Petitioner's Exhibits Nos. 6 and 8.) On April 12, 1977, the Respondent, Richard A. and Helen Cope entered into a contractual agreement whereby the Copes agreed to pay Respondent $65,700.00 for a home to be erected in Oakleaf Village subdivision in Pinellas County, Florida. (See Petitioner's Exhibit No. 9.) The Copes paid $15,000.00 for the lot and to date, no improvements have been made. Additionally, the Copes have been unable to receive a deed to their property nor has Respondent refunded their monies. Bernard and Mary Koser entered into an agreement with the Respondent for the construction of a home to be built in Oakleaf Village for a total purchase price of $55,000.00. On March 21, 1977, the Kosers paid the Respondent, Spanish Grants, Inc., $11,600.00 and to date, the Kosers too have been unable to obtain a refund of these monies which were paid to Respondent nor has the property been deeded to them. (See Petitioner's Exhibits Nos. 10 and 11.) On November 29, 1976, Joseph T. and Patricia Vollaro entered into a contract with Spanish Grants, Inc., for a home to be constructed for $51,460.00. The home was erected on property owned by a Mr. Dreher. The Vollaros purchased the land from the Drehers for a price of $8,080.00. Additionally, the Vollaros paid approximately $2,485.00 over and above the amounts paid for the lot and the price they contracted for their home. (See Petitioner's Exhibits Nos. 11 and 12.) Evidence also reveals that the Respondent, Gerald W. Conrad, pulled two permits for Lot 24, Block K of the Oakleaf Village subdivision. (See Petitioner's Composite Exhibits Nos. 3 and 14.) RESPONDENT'S DEFENSE Essentially, the Respondent, through counsel, attacked the alleged vagueness and uncertainty of Chapter 468.112(e), F.S. Finally, the Respondent considered the acts here complained of against him to be regrettable and that, if possible, he would "turn back the clock".
Recommendation Based on the foregoing findings and conclusions of law, it is hereby RECOMMENDED: That the Respondent's registered building contractor's license No. RB 0016374 be revoked. That the Respondent pay the Board an administrative fine of $300.00. RECOMMENDED this 27th of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John Turnbull, Esquire 319 South Garden Avenue Clearwater, Florida 33516 Mr. C. H. Hoskinson Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue Whether Respondent committed the violations alleged in the respective Administrative Complaints, and, if so, whether Petitioner should impose against Respondent an administrative fine, penalty, and survey fee.
Findings Of Fact DOAH Case No. 13-2011: Failure to Properly Train, Supervise, and Perform CPR Pine Tree Manor is licensed by the Agency for Health Care Administration to operate a 24-bed assisted living facility. The facility's license number is 8317, and it expires on November 13, 2014. On February 12, 2013, the date of the incident that provides the basis for the instant action, Aurelia Cristobal was employed as a staff member at the facility operated by Pine Tree Manor. Spanish is Ms. Cristobal's native language, and her ability to speak English is very limited. Brent Sparks, the owner and administrator at Pine Tree Manor, acknowledged, when interviewed as part of the post-incident investigation, that Ms. Cristobal struggles at times with English, especially when under stress. Mr. Sparks was aware of Ms. Cristobal's limitations with English prior to February 12, 2013. Within a few days of B.Y.'s death, Ms. Cristobal left the United States and is believed to be currently living in Mexico. Ms. Cristobal did not testify during the final hearing. For the period June 15, 2011, through June 15, 2013, Ms. Cristobal was certified by the American Safety & Health Institute in the areas of automated external defibrillation (AED), cardiopulmonary resuscitation (CPR), and basic first aid. In the spring of 2011, Ms. Cristobal received training from Pine Tree Manor in the areas of facility emergency procedures and do not resuscitate (DNR) orders. Pine Tree Manor's written emergency procedures provide, in part, as follows: In all emergencies, it is important to remain calm and display a sense of control. Upsetting our residents will only induce undue stress. DIAL "911" EMERGENCY in the following cases: A medical emergency such as serious injuries or life threatening incidences. Fires Bodily harm to staff or residents such as terrorism, robbery, inclement weather. Call the administrator if there is any question concerning injury or illness, a resident is missing, security of facility is in doubt, or inspectors enter the facility. In the case of any significant changes or emergency, call the family, guardian and a health care provider. Also, contact the administrator. In cases of non-emergency need for transportation to the hospital or emergency room, call SUNSTAR AMBULANCE SERVICE @ 530-1234. In all cases, use common sense and remain calm, and remember to contact the administrator if in doubt. Pine Tree Manor's policy regarding DNR orders provides that: In the event a resident with a signed DNR experiences cardiopulmonary arrest, our policy is for staff trained in CPR/AED to withhold resuscitative treatment. Staff will report to the administrator immediately and in turn notify [the] resident's medical providers and resident representative. For example, staff on duty shall call 911 to report the condition, or if on Hospice [place] a call to (727) 586-4432, the Lavender Team Patient Leader. B.Y. became a resident of Pine Tree Manor on or about December 23, 2010. B.Y. did not execute a DNR directive. On February 12, 2013, between the hours of approximately 5:00 p.m. and 7:00 p.m., Ms. Cristobal was the only employee on site at Pine Tree Manor. According to J.M., who on February 12, 2013, was a resident at Pine Tree Manor, B.Y. entered a common area of the facility where J.M. and other residents were located. J.M. advised that B.Y. sat on the sofa, and started watching television. While on the sofa, B.Y. stopped breathing. The evidence is inconclusive as to how long B.Y. was incapacitated before others learned of her condition. Although it is not clear from the testimony how Ms. Cristobal was informed of B.Y.'s peril, she did, at some point, learn that B.Y. was incapacitated and was experiencing a medical emergency. After learning of B.Y.'s situation, Ms. Cristobal, according to J.M., became nervous and "didn't know what to do." In fact, Ms. Cristobal was so nervous that she did not call 911, she did not check B.Y. for a pulse, and she did not perform CPR on B.Y. Ms. Cristobal did, however, make several attempts to contact Mr. Sparks. Ms. Cristobal eventually reached Mr. Sparks and advised him of the situation with B.Y. The evidence does not reveal how long B.Y. remained incapacitated before Ms. Cristobal was able to speak with Mr. Sparks. When Mr. Sparks received the call from Ms. Cristobal, he was at his residence in Hillsborough County. Pine Tree Manor is located in Pinellas County. Because Mr. Sparks was in Hillsborough County when he received the call from Ms. Cristobal, he was not able to call 911 and be immediately connected to an emergency operator in Pinellas County. Understanding this limitation, Mr. Sparks called the non-emergency number for the Pinellas County Sheriff's office, who, in turn, contacted the 911 operator and informed them of the emergency. In the course of discussing the emergency situation with Ms. Cristobal, Mr. Sparks learned that she had not called 911. Knowing the emergency nature of the situation and the fact that he could not call Pinellas County 911 directly, Mr. Sparks should have directed Ms. Cristobal to call 911, since she was located in Pinellas County, but he did not. Mr. Sparks should have also instructed Ms. Cristobal to start CPR on B.Y., but he did not. According to the Pinellas County Emergency Medical Services (EMS) Patient Care Report for B.Y., the 911 call was received by the 911 dispatcher at 6:11 p.m. and an EMS unit was dispatched to Pine Tree Manor at 6:12 p.m. The EMS unit arrived at the facility at 6:15 p.m. and commenced treating B.Y. at 6:16 p.m. EMS personnel worked for nearly 30 minutes to revive B.Y., but their efforts were unsuccessful. Richard Sherman (EMT Sherman) is a firefighter and paramedic for the Pinellas Suncoast Fire District. EMT Sherman was the first paramedic to arrive at Pine Tree Manor on the day in question. Upon arrival at the facility, EMT Sherman attempted to enter through the facility's main door, but could not gain immediate entry because the door was locked. EMT Sherman rang the doorbell and knocked on the door in an attempt to gain entry into the facility. Resident J.M. opened the door, and EMT Sherman entered the facility. Upon entry, EMT Sherman noticed that B.Y. was unresponsive on the sofa. He also observed at the same time that there were several residents in B.Y.'s immediate area and that there was no staff present. When EMT Sherman arrived, Ms. Cristobal was in another part of the facility assisting a resident who had become upset because the resident was having difficulty satisfying her toileting needs. Approximately a minute after EMT Sherman started resuscitation efforts on B.Y., Ms. Cristobal appeared in the area where B.Y. was located. Because Ms. Cristobal was wearing scrubs, EMT Sherman correctly identified her as a facility employee. EMT Sherman asked Ms. Cristobal if she knew anything about B.Y. and the circumstances surrounding her collapse. Ms. Cristobal did not respond to EMT Sherman's questions. EMT Sherman testified that Ms. Cristobal, after not responding to his questions, simply "looked at [him] and then turned and walked away" towards the main doors of the facility. While continuing to attempt to resuscitate B.Y., EMT Sherman noticed that Ms. Cristobal appeared to be locking the doors that he had just entered. EMT Sherman instructed Ms. Cristobal several times to not lock the doors because more emergency personnel would soon be arriving. Apparently not understanding EMT Sherman's directives, Mr. Cristobal locked the doors. A few minutes later, district fire chief John Mortellite arrived at the facility. EMT Sherman, while continuing to work on B.Y., heard District Chief Mortellite banging on the locked main doors in an effort to gain entry to the facility. A resident eventually unlocked the doors, and District Chief Mortellite entered the building. When asked why Ms. Cristobal would call him in an emergency situation and not 911, Mr. Sparks explained that it was Ms. Cristobal's practice to always call him in an emergency and that he would, in turn, manage the situation. Mr. Sparks, by allowing Ms. Cristobal "to always call him" in emergency situations instead of 911, created an alternative practice that was directly contrary to the facility's written policy which clearly directs employees to "DIAL '911'" when confronted with a medical emergency. Ms. Cristobal was, therefore, not properly trained. Mr. Sparks, by establishing and, indeed, encouraging a practice that shielded Ms. Cristobal from directly communicating with 911, placed B.Y. in a position where there was an unacceptable delay, though not precisely quantifiable, in contacting emergency personnel on her behalf. In a life or death situation such as that experienced by B.Y., every second matters because, as noted by EMT Sherman, "the longer the delay [in receiving medical treatment] the less probability of a positive outcome." When EMT Sherman arrived at Pine Tree Manor, he was completely unaware of the fact that the only employee on site spoke little, if any English. It is, therefore, reasonable to infer that Mr. Sparks failed to inform either the Pinellas County Sheriff's Office or the 911 operator of Ms. Cristobal's limitations with the English language. By Ms. Cristobal's not calling 911, and Mr. Sparks' not disclosing to the 911 operator that the only employee on site had limited English language skills, decedent B.Y. was placed in the unenviable position of having EMT Sherman's attention divided between resuscitation efforts and worrying about whether Ms. Cristobal was able to comply with his instructions. EMT Sherman testified that Pinellas County EMS, including 911 operators, has protocols in place for dealing with individuals that may not speak English. Had either Mr. Sparks disclosed to the 911 operator Ms. Cristobal's language limitations or had Ms. Cristobal herself called 911, protocols could have been implemented by emergency personnel that would have triggered certain safeguards designed to ensure that Ms. Cristobal's language limitations did not interfere with the delivery of emergency services to B.Y. DOAH Case No. 13-2397: Failure to Remain Generally Aware of the Whereabouts of Resident Most recently, R.D., on September 27, 2010, became a resident of Pine Tree Manor. A demographic data information survey was prepared as part of R.D.'s new resident intake process. R.D.'s intake data showed that he was independent in the areas of ambulation, bathing, dressing, toileting, eating, and transferring. R.D. was identified as needing supervision when performing tasks related to personal grooming. It was also noted that R.D. suffered from anxiety and panic attacks. According to R.D.'s brother Tom, R.D. was under the care of a psychiatrist for many years and "suffered from debilitating panic attacks." When suffering a panic attack, R.D. would often lay on the ground or floor, most often in a fetal position, and remain in this position until help arrived. As a part of the new resident intake process, R.D. was assessed for his risk of elopement. The assessment revealed that R.D. was not at risk for elopement and that he was free to "come and go [from the facility] as he pleases" and that he needed to "sign out" whenever leaving the facility. By correspondence dated March 14, 2011, the administration of Pine Tree Manor reminded R.D. that he needed to adhere to the facility's resident sign-out procedure whenever leaving from and returning to the facility. Approximately ten months after reminding R.D. of the facility's sign-out procedure, Mr. Sparks, on January 2, 2012, updated R.D.'s risk assessment form and again noted thereon that R.D. "may come and go as he pleases" and he "[n]eeds to remember to sign out" when leaving the facility. On May 23, 2012, R.D. was evaluated by a physician and it was noted, in part, that R.D. could function independently in the areas of ambulation, bathing, dressing, eating, grooming, toileting, and transferring. As for certain self-care tasks, the evaluating physician noted that R.D. needed assistance with preparing his meals, shopping, and handling his personal and financial affairs. It was also noted that R.D. needed daily oversight with respect to observing his well-being and whereabouts and reminding him about important tasks. The evaluating physician also noted that R.D. needed help with taking his medication.1/ The evaluation was acknowledged by Mr. Sparks as having been received on May 25, 2012. R.D.'s most recent itemization of his medications shows that on October 10, 2012, he was prescribed Clonazepam and Buspirone. The Clonazepam was administered three times a day at 8:00 a.m., noon, and 8:00 p.m. The Buspirone was administered four times a day at 8:00 a.m., noon, 5:00 p.m., and 8:00 p.m. These medications are often prescribed for anxiety, however, R.D.'s medications listing form does not expressly denote why the drugs were prescribed. At 7:58 a.m., on November 10, 2012, an ambulance from the Pinellas County EMS was dispatched to Pine Tree Manor. When the EMS unit arrived at 8:00 a.m., R.D. was found "on the ground or floor" and was complaining of feeling anxious. While being treated by EMS, R.D. took his 8:00 a.m. dose of Clonazepam and was transported to "Largo Med." Less than 24 hours later, EMS, at 4:29 a.m., on November 11, 2012, was dispatched to 13098 Walsingham Road, because R.D. was again complaining of feeling anxious. This location is apparently near Pine Tree Manor, as the EMS Patient Care Report for this service call notes that R.D. "walked to [the] store." Following the evaluation by EMS, R.D. was again transported to "Largo Med." At 12:24 p.m., on November 18, 2012, EMS was dispatched to a location near Pine Tree Manor where R.D. was found "lying supine on [the] sidewalk." According to the EMS report, R.D. advised that he became lightheaded and fell to the ground. R.D. did not complain of any other symptoms and was transported to a medical facility in Largo for further evaluation. At 1:27 p.m., on November 25, 2012, EMS was dispatched to a 7-11 store near Pine Tree Manor. Upon arrival at the store, EMS personnel found R.D. and, when questioned, he advised that he was again feeling anxious. Per R.D.'s specific request, as noted on the EMS report, he was transferred to St. Anthony's Hospital in St. Petersburg. On November 28, 2012, Mr. Sparks made an entry into R.D.'s file and noted that a neurosurgeon evaluated R.D.'s shunt on that date in an attempt to determine if a malfunction was the cause of R.D.'s panic attacks. Mr. Sparks noted in the record that the doctor advised that the shunt was working properly and that the shunt was ruled out as the "cause of [R.D.'s] panic attacks." As of November 28, 2012, Mr. Sparks was aware that R.D. had recently complained of experiencing panic attacks and that the cause of the same had not yet been determined. It was not confirmed, although it was certainly believed by Mr. Sparks, that R.D. was manipulating medical personnel at local treatment facilities for the purpose of securing medication beyond that prescribed by his regular treating physicians. This belief by Mr. Sparks is reasonable especially in light of R.D.'s request to EMS personnel on November 25, 2012, that he was to be transported to a medical facility other than "Largo Med" for treatment related to his feelings of anxiety.2/ R.D.'s medication record for December 4, 2012, shows that he was given his prescribed medication for the 8:00 a.m. dispensing time. Soon after receiving his medication, R.D. left Pine Tree Manor for the purpose of visiting his local congressman's office. According to the survey notes from the investigation related hereto, the congressman's office is located approximately two miles from Pine Tree Manor. Although it cannot be confirmed, it reasonably appears that R.D. walked to the congressman's office. R.D. did not sign out of the facility when he left Pine Tree Manor on the morning of December 4, 2012. R.D. did, however, inform facility staff that he was going to the congressman's office to discuss an issue.3/ Security video from the building where the congressman's office is located established that R.D. arrived at the congressman's office at 9:50 a.m. At approximately 10:45 a.m., a representative from the congressman's office called Pine Tree Manor and informed them that R.D. was ready to return to the facility. The person receiving the message from the congressman's office contacted Mr. Sparks and informed him that R.D. was requesting a ride back to Pine Tree Manor from the congressman's office. Mr. Sparks was assisting another resident at a local hospital when he received the request to transport R.D. and was, therefore, unable to transport R.D. from the congressman's office. Pine Tree Manor had no obligation to provide transportation services to R.D. Surveillance video from the building where the congressman's office is located confirmed that R.D. exited the building on December 4, 2012, at approximately 10:50 a.m. R.D.'s body was found on December 12, 2012. It is not known what happened to R.D. between the time he left the congressman's office and when his body was eventually discovered.4/ When Mr. Sparks returned to Pine Tree Manor on December 4, 2012, he was advised by staff that R.D. had not returned from the congressman's office. According to the posted work schedule for December 4, 2012, Mr. Sparks worked from 7:00 a.m. to 5:00 p.m. When Mr. Sparks left Pine Tree Manor on December 4, 2012, R.D. had not returned. Mr. Sparks, upon leaving the facility for the day, instructed staff (Aurelia Cristobal) to call him when R.D. returned. Ms. Cristobal's shift ended at 8:00 p.m. Pine Tree Manor employee Laura Munoz worked from 7:00 p.m. on December 4, 2012, to 7:00 a.m. on December 5, 2012. Ms. Munoz was not responsible for assisting R.D. with his medication, so it is unlikely that she would have known that R.D. missed receiving his medication prior to her arrival at work. Because Mr. Sparks left Pine Tree Manor on December 4, 2012, before Ms. Munoz arrived for work, he called Ms. Munoz after her shift started (precise time unknown) and requested that she call him upon R.D.'s return. There were no instructions given to Ms. Munoz by Mr. Sparks as to what she should do if R.D. did not return by some time certain. On December 4, 2012, Mr. Sparks knew that R.D. had never spent the night away from Pine Tree Manor without someone at the facility knowing R.D.'s whereabouts and that R.D. had never gone unaccounted for a period greater than 12 hours. On December 5, 2012, Mr. Sparks' scheduled work time was from 7:00 a.m. to 5:00 p.m. Prior to reporting to the facility on the morning of December 5, 2012, Mr. Sparks learned that R.D. had not returned to his room during the night shift. The exact time is not known when Mr. Sparks acquired this information, but it was likely sometime around 6:30 a.m. After learning that R.D. was still unaccounted for, Mr. Sparks immediately began canvassing the area near Pine Tree Manor. Around this same time, Mr. Sparks contacted R.D.'s brother and apprised him of the situation. At approximately noon on December 5, 2012, Mr. Sparks contacted the Pinellas County Sheriff's Office and reported R.D. missing. Pine Tree Manor has an elopement and missing residents policy that provides, in part, as follows: Residents may come and go as they please and shall not be detained unless family/resident representative and administrator agree supervision is required. A resident leaving the facility should either sign out by the front door or inform a staff member of their departure and provide an estimated time of return. The staff person should sign the resident out and notify other staff on duty. . . . If a resident . . . is deemed missing, staff shall immediately search the entire facility inside and around the facility grounds. . . . Whenever a resident is not found within the facility or its premises, the Administrator will: Notify the resident's representative. Notify the County Sheriff's Department by calling 911. Provide staff and searching parties with information and photo I. D. Instruct the staff to search inside the facility and the premises, the adjacent residential properties to the facility, up and down 131st Street, 102nd Avenue and the cross streets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration: Enter in Agency Case No. 2013002572 (DOAH Case No. 13-2397) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class II violation and assessing an administrative fine of $5,000.00 and a survey fee of $500.00. Enter in Agency Case No. 2013004620 (DOAH Case No. 13-2011) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class I violation and assessing an administrative fine of $8,000.00. It is also RECOMMENDED that the final order not revoke Respondent's license to operate an assisted living facility in the State of Florida, but, instead, suspend Respondent's license for a period of 60 days.7/ DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 5th day of December, 2013.
Findings Of Fact Gerretson is the owner of Lot 2, Block 2, Sea View Subdivision, Big Pine Key, Monroe County, Florida. 1/ On January 11, 1984, Gerretson applied to Monroe County for a land clearing permit. The permit, as requested, would have permitted him to clear his lot of vegetation in the area proposed for his house, driveway and septic tank. 2/ Gerretson's application was denied, as was his appeal to the Monroe County Board of Adjustment; however, on October 16, 1985, the Board of County Commissioners of Monroe County (Monroe County), by resolution, reversed the decision of the Board of Adjustment. The Department, pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Adjudicatory Commission. The subject property The Sea View Subdivision is sparsely developed, and its lands are in a natural state except for the existence of two roads. The subdivision is bounded on the north by Port Pine Heights, an established subdivision; on the east and south by lands belonging to the U.S. Fish and Wildlife Service, as part of the National Key Deer Refuge; and on the west by Pine Channel. The Sea View Subdivision is itself within the boundaries of the Key Deer Refuge. Gerretson's lot is located at the southern extreme of the subdivision; abutting the lands belonging to the U.S. Fish and Wildlife Service (the Government) and the northern limit of Watson Hammock, a unique natural area containing endemic, rare and endangered plant and animal species. Separating the Government's property from Gerretson's, is an unnamed 25' wide platted, but non-existent road. 3/ Currently, the closest vehicular access to Gerretson's property is by a fire break on the Government's land. This fire break is separated from Gerretson's lot by an area of natural vegetation approximately 70' in width. To access Gerretson's property from the subdivision would require that the lands dedicated for "no name road" be cleared of native vegetation a distance of 100'- 200' to the closest existing road. There are no plans, however, to construct "no name road." 4/ Gerretson's property is typical of the surrounding area, and characteristic of an old and well established pineland community. Vegetation includes endangered, threatened, and protected species such as South Florida Slash Pine, Key Cassia, Ladder Brake Fern, Thatch Palm, Cabbage Palm, and Silver Palm. Applicable development regulations Gerretsons' property is located in that portion of Monroe County designated as an area of critical state concern. Section 380.0552, Florida Statutes. As such, development must be consistent with Chapters 27F-8 and 27F- 9, Florida Administrative Code, as well as Monroe County's comprehensive plan. Pertinent to these proceedings are Rule 27F-8.03(5), Florida Administrative Code, the coastal zone protection and conservation element of Monroe County's comprehensive plan, and Sections 18-16 through 18-25 of the Monroe County Code. 5/ Rule 27F-8.03(5), Florida Administrative Code provides: Third Objective: Protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example hardwood hammocks and pinelands), dune ridges and beaches, wildlife and their habitat. Guidelines: * * * 5. Prohibit any significant disturbance, including but not limited to land clearing and excavation, of established habitats for documented resident populations of endangered species . . . Monroe County's comprehensive plan, the coastal zone protection and conservation element, dealing with natural vegetative resources and terrestrial wildlife resources provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance standards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. In areas where temporary removal of vegetation is necessary during construction, replanting of ground cover will be carried out as soon as possible. The unique and endangered status of the hardwood hammock community; and the critical role of the pineland in providing the only living habitat for the Key Deer will be recognized add given due consideration in developing future land use regulations. Development in and adjacent to hardwood hammock and pineland areas will be carefully regulated so as to maintain normal drainage patterns and the ecological balance of the entire area. Outstanding, rare, and unique communities of hardwood hammock and pineland will be preserved to the greatest extent possible. * * * The existing county ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. The County will seek assistance from and cooperate with the appropriate State and Federal agencies in developing and enforcing regulations designed to protect rare, threatened and/or endangered plant species from development, vandalism, tree poaching, and plant thefts. TERRESTRIAL WILDLIFE MANAGEMENT POLICIES In order to conserve and wisely manage the Keys' wildlife resources, the County will conscientiously direct its efforts toward the protection and improvement of wildlife habitats throughout the Keys. Development activities which may degrade, destroy, or severely impact productive areas for wildlife will be required to assess possible means and, to the extent practicable, adopt protective measures for abating these impacts on wildlife populations and habitat. Recognizing that each wildlife group has its own requirements and tolerances, the adequacy of protective measures will be evaluated for each individual species occupying the habitat. Improvement of habitat through encouragement of native vegetation which would give desirable species the best chance to flourish will be supported and encouraged. Planning, design, siting, and construction of public capital improvements and facilities such as roads, solid waste disposal sites, and utility lines and structures will be carefully regulated to minimize impact on wildlife habitat and movement patterns. The County will exert special protective efforts regarding the preservation of rare, endemic, endangered, or threatened species as identified by Federal and State agencies and the habitat required to support these species in the coastal zone. Intensive development will be directed away from the habitat of rare, endemic, endangered, or threatened species. * * * 7. Introduction as pets of those exotic animal species which may represent a potential danger to the native wildlife will be discouraged. Pertinent to this proceeding, the Monroe County Code (Code) provides: Section 18-18 Land clearing permit . . . It shall be unlawful and an offense against the county for any person . . . to clear . . . any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department . . . * * * (c) Review and approval of development site plans which results in the issuance of a development order shall constitute compliance with the requirements of this section. In such cases the land clearing permit will be issued in conjunction with the building permit. * * * Section 18-19 Same-Application . . . Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegetative communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape architect or other professional with a working knowledge of the native vegetation of the Florida Keys . . . With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees An overall site plan of the land for which the permit is requested, indicating the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above . . . shall be included. Prior to the issuance of a land clearing permit, the building department shall field check the proposed clearing site and shall verify on the application that the facts contained therein, relative to the location and description of vegetation, are factually correct. * * * Section 18-21. Same - Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied . . . Areas of concern Gerretson's property and the surrounding refuge area are prime habitat for the Key Deer. 6/ The Key Deer is listed as a threatened species by the State of Florida and endangered by the Federal Government. 7/ Currently, the Key Deer population is on the decline from a once stable population of about 400 to a current population of about 250. 8/ This decline is directly attributable to loss of habitat and the consequent adverse impacts of human presence, such as increased automobile traffic, large domesticated dogs, and loss of wildness in the deer. While the proposed clearing of Gerretson's lot would, in and of itself, probably not significantly impact the Key Deer or its habitat, the fact that he has no road access to his property will require the continuous crossing of adjacent natural habitat and significantly expand the sphere of human impact on the deer. Additionally, the purpose of Gerretson's lot clearing cannot be ignored in analyzing the ultimate impacts of his proposal. The purpose of Gerretson's permit is to allow the construction of a single family residence on his lot. Gerretson's lot is located at the southern extreme of Sea View Subdivision, and his home would be the first built in the area. The construction of this house alone, with its consequent human presence, would adversely impact the Key Deer and its habitat. Considering the precedential nature of Gerretsons' construction, the cumulative impact from the project on the deer would be significantly greater. 9/ Notwithstanding the evident adverse impacts, Gerretson failed to offer any plan to mitigate the impacts of the proposed land clearing and construction on the Key Deer population. Gerretsons' proposal would also displace endemic, protected, threatened and endangered plant species in the area of the proposed house, driveway and septic tank. To support his application, Gerretson submitted a vegetation survey by a "qualified person." The survey does not, however, "map" the natural vegetation by locating individual species but, rather, divides Gerretson's lot into four quadrants and lists the vegetation found in each quadrant. While there is no dispute that the survey accurately lists the vegetation to be found in each quadrant, the survey is of little or no value in identifying the significant vegetation that will be displaced by construction, analyzing the site to determine the least disruptive site layout, or developing an adequate transplanting or revegetation scheme. In sum, Gerretson's vegetation survey fails to comply with the letter or spirit of the Monroe County Code. 10/ At hearing, Gerretson averred that he would transplant any endangered or threatened species, and would limit his fill activity to that required for the septic tank system. 11/ He failed, however, to identify the species that would be impacted or offer any plan for transplantation or revegetation that could be evaluated for its likelihood of success. In sum, Gerretson failed to offer any viable plan to mitigate the impacts of his proposal on endemic, protected, threatened and endangered plant species. The Department also asserts that the subject permit should not issue because Gerretson's property does not abut an existing road. Section 19-135, Monroe County Code, provides: No building or structure shall be erected on a parcel of land which does not abut a public or private road having a minimum width of fifteen (15) feet. The fact that "no name road" does not exist would preclude Gerretson, absent variance from the Monroe County Code, from securing a building permit to construct his residence. While the subject permit is a land clearing permit and not a building permit, there is no rational basis to grant a clearing permit to construct a house if the house cannot be built. Accordingly, it would be appropriate to condition the issuance of a land clearing permit on the issuance of a building permit.
The Issue The issue is whether the land development regulations (LDRs) adopted by Respondent, Monroe County (County), by Ordinance Nos. 008-2006, 009-2006, 010-2006, 011-2006, and 013- 2006, and which were approved (with one minor exception) by five Final Orders issued by Respondent, Department of Community Affairs (Department) on June 5, 2006, are consistent with Section 380.0552(7), Florida Statutes (2006)1.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Parties The County is a non-chartered county and a political subdivision of the State. Because the County is located within the Florida Keys Area, which is a statutorily designated Area of Critical State Concern, all LDRs adopted by the County must be approved by the Department. §§ 380.05(6) and 380.0552(9), Fla. Stat. The LDRs are codified in the Monroe County Code. The Department is the state land planning agency with the power and duty to exercise general supervision of the administration and enforcement of the Area of Critical State Concern program, and to approve or reject LDRs adopted by local governments within an Area of Critical State Concern. Petitioner, Florida Keys Citizens Coalition, Inc., is a not-for-profit Florida corporation whose address is 10800 Overseas Highway, Marathon, Florida. The parties have stipulated that there are sufficient facts to establish that the substantial interests of FKCC could be adversely affected by the LDRs being challenged and thus FLCC has standing to initiate this action. Petitioner, Protect Key West and the Florida Keys, Inc., d/b/a Last Stand, is a not-for-profit Florida corporation whose address is Post Office Box 146, Key West, Florida. The parties have stipulated that there exists a sufficient factual basis to demonstrate that its substantial interests may be affected by this proceeding, and thus it also has standing to bring this action. Background This case involves a challenge to five Final Orders (DCA06-0R-123, DCA06-0R-124, DCA06-OR-125, DCA06-OR-126, and DCA-0R-127) entered by the Department on June 6, 2006, under the authority of Sections 380.05(6) and 380.0552(9), Florida Statutes. Those Orders approved, with one minor exception, five County Ordinances (Ordinance Nos. 008-2006, 009-2006, 010-2006, 011-2006, and 013-2006), which adopted LDRs implementing a so- called "Tier System" in order to meet natural habitat protection requirements. In essence, the LDRs place all undeveloped parcels of land in the unincorporated County into one of three categories, and then adopt development standards applicable to each category. Petitioners have challenged ninety of the tier maps (which contain the tier designations of multiple parcels in those maps) and many of the related development standards. In addition, the Ordinances allow the issuance of certain residential allocations for building permits in excess of previously established annual caps, for up to five years into the future for affordable units. The Keys were originally designated an Area of Critical State Concern by the Administration Commission in 1975 and re- designated by the Legislature in 1986. See § 380.0552, Fla. Stat. The Legislative Intent section and the Principles for Guiding Development codified in Section 380.0552(9), Florida Statutes, together require an effective land use management system that protects the natural environment and character of the Keys, maintains acceptable water quality conditions, ensures adequate public facility capacity and services, provides adequate affordable housing, supports a sound economic base, protects constitutional property rights, and requires adequate emergency and post-disaster planning to ensure public safety. Approximately sixty to seventy percent of the land in the Florida Keys is owned by the public, fifteen percent is already developed, and only fifteen to twenty percent is privately owned and not developed. If the mainland portion of the County (which includes a portion of the Everglades National Park) is excluded, over ninety-nine percent of land is in public ownership. The Florida Keys are a long arc of islands extending more than one hundred miles from just north of Key Largo to Key West. Excluding the City of Key West, the mainland portion of the Keys is approximately 80,000 to 100,000 acres. The Keys differ in size, type of plant communities, and geological characteristics and are generally divided into the Upper, Middle, and Lower Keys. A County staff report describes the Upper Keys as extending from Mile Marker 91 (Tavernier Creek Bridge) northward to Mile Marker 112, excluding the Ocean Reef subdivision; the Middle Keys as the unincorporated area stretching from Mile Marker 60 (Duck Key) through Mile Marker 71 (Long Key); and the Lower Keys as including all of the islands from Mile Marker 4 (Stock Island) to Mile Marker 40 (Little Duck Key), excluding Big Pine and No Name Keys. See Respondents' Exhibit 9, pages 11-16. Most of the parcels in dispute here are in the Upper Keys. The Upper and Middle Keys are the product of an old coral reef formation, while the Lower Keys consist of solidified limestone sand. The coral reef formation extends like a spine much of its way down the Keys. At the higher elevations in the Upper and Middle Keys (which approach five to ten feet above sea level) are uplands, consisting of tropical hardwood hammocks. As the elevation drops, different habitat occur, including transitional wetlands, salt marshes, mangroves, and eventually shallow water seagrass beds. (Surprisingly, the highest elevation in the Keys is Solares Hill in Key West, which is eighteen feet above sea level.) Upland plant communities in the Keys include a variety of hardwood trees, including gumbo-limbo, mahogany, mastic, dogwood, and tararind, and specialized shrubs, vines, and ground cover. Tall or high hammocks occur on the connected islands, mostly in the Upper Keys, and on offshore mangrove-fringed islands that provide habitat to a wide range of wildlife and maintain water quality and other functions. Shorter, denser low hammocks are found in the Lower Keys. Regardless of size, though, hammocks in one part of the Keys are important to hammocks in other parts of the Keys due to the seed dispersal role played by neo-tropical birds, which migrate every year from North America through the Keys and into the Caribbean and Central and South America. The Keys host a vast array of unique endemic animal and plant communities, over one hundred of which are listed by the federal and state governments as endangered, threatened, or of special concern. Among these are the Florida Key deer, marsh rabbit, silver rice rat, Key Largo woodrat, and Key Largo cotton mouse. In addition, the American crocodile inhabits the Keys, and the tree snail is now confined to just ten or twelve small hammocks. Also, the white crowned pigeon is a migratory bird that uses the Keys in the summertime as a migratory stopping point and is listed as a species "of concern" by the State. The Current Regulations The current version of the LDRs includes a residential Rate of Growth Ordinance (ROGO) found in Sections 9.5-120 through 9.5-123, a non-residential Rate of Growth Ordinance (NROGO) in Section 9.5-124, and environmental standards which focus on a Habitat Evaluation Index (HEI) codified in Sections 9.5-335 through 9.5-349. A building permit for a residential dwelling unit cannot be issued unless the dwelling unit has received a ROGO allocation. § 9.5-120.1. A building permit for non-residential floor area cannot be issued without an NROGO allocation. § 9.5- 124.1(a). The ROGO and NROGO allocations are issued based upon a competitive point system, with the applicants who receive the most points receiving the limited number of annual permit allocations. §§ 9.5-122(a), 9.5-122.2, 9.5-124.4, and 9.5- 124.6. The ROGO point system consists of eighteen evaluation criteria, which assign positive points for factors such as infrastructure availability, lot aggregation, density reduction, land dedication, affordable housing, and water and energy conservation. They also assign negative points for factors such as the presence of significant or critical habitat, threatened or endangered species, and coastal high hazard area. § 9.5-122.3. For example, ten negative points are assigned for federal coastal barrier resource system lands due to the environmental importance of coastal resources, while all offshore islands and conservation land protection areas receive ten negative points. NROGO utilizes a similar point system with thirteen evaluation criteria. § 9.5-124.8. The habitat protection criterion of ROGO and NROGO is based upon the type and quality of habitat on the parcel proposed for development. §§ 9.5-122.3(a)(7) and 9.5-124.8(a)(4). If a development permit is sought for land classified on the existing conditions map as slash pineland or tropical hardwood hammock, the habitat must be analyzed under the HEI system. §§ 9.5-336 through 339.1. (The existing conditions map is a map reflecting the "conditions legally in existence on February 28, 1986" and consists of 1985 Florida Department of Transportation aerial photographs at a scale of one inch equal two hundred feet depicting habitat types coded according to the system set forth in the Comprehensive Plan (Plan). It is intended to serve only as a general guide to habitat types "for the purpose of preliminary determination of regulatory requirements." § 9.5- 336.) The HEI consists of an elaborate point system covering nineteen pages in the LDRs and requires a site visit to each parcel by a qualified biologist. §§ 9.5-339.1 through 9.5-343. Through experience and the passage of time, the County and Department have become aware of deficiencies in the ROGO- NROGO-HEI point systems. The existing conditions map is based on more than 20-year-old data, and some areas that did not have valuable habitat at that time have regrown into valuable hammock. The HEI criteria are complicated and difficult to apply consistently. The HEI evaluates the habitat parcel-by-parcel and allows scattered development within large patches of habitat. The HEI criteria are also subject to varied interpretations by individual biologists. The Work Program and Carrying Capacity Study The current Plan is a result of a series of plan amendments made in order to bring the Plan into compliance with Chapter 163, Florida Statutes. After a lengthy review and hearing process that lasted a number of years, the Department found the County's initial comprehensive plan out of compliance, entered into a compliance agreement with the County requiring a complete rewrite based upon an overall carrying capacity approach, and then found the rewritten plan out of compliance. Eventually, a Final Order requiring that the County adopt additional remedial amendments was entered by the Administration Commission in 1995. See Department of Community Affairs v. Monroe County et al., DOAH Case No. 91-1932GM (DOAH July 17, 1995, Admin. Comm. Dec. 12, 1995), 1995 Fla. ENV LEXIS 129. Under the authority of Section 380.0552(9), Florida Statutes, the Administration Commission has promulgated parts of the County's Plan through the adoption of Florida Administrative Code Rule Chapter 28-20. One of those provisions is the Work Program in Policy 101.2.13, which includes, among others, tasks regarding preservation of upland habitat and affordable housing. These tasks are enumerated on a year-by-year basis, beginning with Year One, which ended on December 31, 1997, and continuing through Year Ten, which runs from July 13, 2006, through July 12, 2007. The Annual Work Program is a central component of the Plan's remedial amendments (required by the Administration Commission in 1995) and requires the County to implement the Florida Keys Carrying Capacity Study (FKCCS) with appropriate Plan and LDR changes. The purpose was to ensure that the zoning map maintained the carrying capacity of the Keys in perpetuity. The FKCCS was completed over a period of six years at a cost of six million dollars. The contractor, URS Corporation, completed the FKCCS and the Carrying Capacity/Impact Assessment Model (CCIAM), a separate component to be used in forecasting land use scenarios. A panel of external experts was used to peer review the scope of work. The National Research Council of the National Academy of Sciences reviewed the CCIAM and FKCCS and, as a result of its review, adjustments were made to the CCIAM. The Council's review concluded that overall, due to data constraints and other issues in certain portions of the CCIAM, the model proved insufficient to develop a comprehensive carrying capacity framework that would allow for undisputable determinations of whether future development scenarios fall within the carrying capacity of the Florida Keys. The marine module, the most data deficient, was subsequently removed from the CCIAM. The study was completed in September 2002. The FKCCS' chief findings were that: Development in the Keys has surpassed the capacity of the upland habitats to withstand further development; Any further encroachment into areas dominated by native vegetation would exacerbate habitat loss and fragmentation. The lower Keys marsh rabbit and silver rice rat are highly restricted and likely could not withstand further habitat loss without facing extinction. Development in the Keys has surpassed the capacity of upland habitats to withstand further development. The secondary and indirect effects of development further contribute to habitat loss and fragmentation. Any further development in the Keys would exacerbate secondary and indirect impacts to remaining habitat. Virtually every native area in the Keys is potential habitat for one or more protected species. The FKCCS suggested four main guidelines for future development in the Keys: Prevent encroachment into native habitat. A wealth of evidence shows that terrestrial habitats and species have been severely affected by development and further impacts would only exacerbate an already untenable condition. Continue and intensify existing programs. Many initiatives to improve environmental conditions and quality of life exist in the Florida Keys. They include land acquisition programs, the wastewater and stormwater master plans, ongoing research and management activities in the Florida Keys National Marine Sanctuary, and restoration efforts throughout the Florida Keys. If further development is to occur, focus on redevelopment and infill. Opportunities for additional growth with small, potentially acceptable, additional environmental impacts may occur in areas ripe for redevelopment or already disturbed. Increase efforts to manage the resources. Habitat management efforts in the Keys could increase to effectively preserve and improve the ecological values of remaining terrestrial ecosystems. The FKCCS also considered a fiscal analysis. The fiscal module predicted that the programs needed to protect the Keys would be very expensive, with a disproportionate increase in government expenditures compared to the increase in population. The very high per capita costs of the needed programs is one factor to be considered as the County implements the FKCCS. The FKCCS recognizes that development pursuant to the then-existing comprehensive plan and LDRs is already extremely restricted. It also recognizes that additional growth with some associated environmental impact would be acceptable in areas that are already disturbed or ripe for redevelopment. In 2001, the County adopted Goal 105 of the Plan (also known as the Smart Growth Goal) to provide a framework within the 2010 Plan to implement the FKCCS and a 20-year land acquisition program. The initial phase of implementing this Goal called for the drafting and adoption of "Tier maps" to be used as guidance for the County's land acquisition program. The Goal contemplates that the Tier maps would designate and map properties into one of three general categories: Conservation and Natural Area (Tier I), Transition and Sprawl Reduction Area (Tier II), and Infill Area (Tier III). Additional work tasks contemplated in the implementation of Goal 105 (and thus the FKCCS) included amendment of the zoning map with a tier overlay and supporting text amendments to the LDRs, revising the permit allocation system, developing a land acquisition strategy, and a land maintenance program. These tasks are more specifically identified in a series of policies adopted at the same time to assist in the implementation of Goal 105. According to the Department, if the regulations at issue here are found to be consistent with Chapter 380, Florida Statutes, the requirements of the FKCSS will be satisfied, and there is no further requirement to make any further changes to the Plan or LDRs to implement the FKCSS. In 2004, the Administration Commission began the process for adopting a new rule, which later became effective in 2005 as Florida Administrative Code Rule 28-20.110,4 to add the following tasks to the existing Work Program in Policy 101.2.13 of the Plan related to habitat protection: In Year 8: Review and revise (as necessary) the Conservation and Natural Areas Map, Initiate acquisition strategy for lands identified outside the Conservation and Natural Areas identified as worthy of protection, Begin public hearings for Conservation and Natural Areas boundaries, Conclude public hearings for the adoption of the amended Conservation and Natural Areas Boundaries, Adopt an ordinance to implement a moratorium on ROGO/NROGO applications that involves the clearing of any portion of an upland tropical hardwood hammock or pinelands habitat contained in a tropical hardwood hammock or pinelands patch of two or more acres in size located within a Conservation and Natural Area, Adopt amendments to the comprehensive plan and land development regulations to enact overlay designations, and eliminate or revise the Habitat Evaluation Index, and modify the ROGO/NROGO system to guide development away from environmentally sensitive lands, Amend land development regulations to prohibit the designation of Conservation and Natural Areas (Tier I) as a receiver site for ROGO exempt development from sender sites; and to further limit clearing of upland native habitat that may occur in the Natural Areas (Tier I) and the Transition and Sprawl Reduction Area (Tier II) upon designation by the County, and Develop Land Acquisition and Management Master Plan and address both funding and management strategies. In 2005, the County adopted the plan amendments contemplated by Year 8 of the Work Program. These plan amendments delete the requirements for the HEI, simplify ROGO and NROGO, and adopt the Tier designation criteria. Relevant to this proceeding are Goal 205, Objective 205.1, and Policy which read as follows: GOAL 205 The health and integrity of Monroe County's native upland vegetation shall be protected and, where possible, enhanced. Objective 205.1 Monroe County shall utilize the computerized geographical information system (GIS) and the data, analysis and mapping generated in the Florida Keys Carrying Capacity Study (FKCCS), FMRI, habitat maps and field evaluation to identify and map areas of upland vegetation in the Florida Keys and to prepare Tier Overlay District Maps as required in Policy 105.2.2. Policy 205.1.1 The County shall establish the following criteria at a minimum to use when designating Tiers: Land located outside of Big Pine Key and No Name Key shall be designated as Tier I based on the following criteria: Natural areas including old and new growth upland native vegetated areas, above 4 acres in area. Vacant land which can be restored to connect upland native habitat patches and reduce further fragmentation of upland native habitat. Lands required to provide an undeveloped buffer, up to 500 feet in depth, if indicated by appropriate special species studies, between natural areas and development to reduce secondary impacts; canals or roadways, depending on size may form a boundary that removes the need for the buffer or reduces its depth. Lands designated for acquisition by public agencies for conservation and natural resource protection. Known locations of threatened and endangered species. Lands designated as Conservation and Residential Conservation on the Future Land Use Map or within a buffer/restoration area as appropriate. Areas with minimal existing development and infrastructure. Lands on Big Pine Key and No Name Key designated as Tier I, II, or III shall be in accordance with the wildlife habitat quality criteria as defined in the Habitat Conservation Plan for those islands. Lands located outside of Big Pine Key and No Name Key that are not designated Tier I shall be designated Tier III. Designated Tier III lands located outside of Big Pine Key and No Name Key with tropical hardwood hammock or pinelands of one acre or greater in area shall be designated as Special Protection Areas. Lands within the Ocean Reef planned development shall be excluded from any Tier designation. These plan amendments were found in compliance by the Department, were not challenged, and are part of the presently effective Plan. Year 8 of the Work Program also required that the County amend its LDRs to implement the Tier system. The LDRs being challenged here are intended to meet that requirement. The Challenged Ordinances After a series of eight public hearings that took place between December 2004 and March 2006, the County adopted four Ordinances on March 15, 2006, and a fifth Ordinance on March 21, 2006. Those Ordinances amended the LDRs. More specifically, on March 15, 2006, the County adopted Ordinance No. 008-2006, which deleted requirements for the preparation of the HEI for properties containing hammock, requires an existing conditions report, vegetation survey, and grants of conservation easements, and limits clearing of native upland vegetation dependent on the tier system designation. It also proposed to delete Section 9.5-342, which establishes when a hammock is classified as a Palm Hammock. In a Final Order dated June 5, 2006, the Department determined that with the exception of the proposed deletion of Section 9.5-342, the Ordinance was consistent with the Principles for Guiding Development as a whole, and was therefore approved. The County has not challenged that portion of the Final Order which disapproved the deletion of Section 9.5-342. On March 15, 2006, the County also adopted Ordinance No. 009-2006, which implements Goal 105 of the Plan by utilizing tier overlay maps as a basis for the County's competitive point system; providing revised criteria for the building permit allocation system; allowing the transfer of development exempt from the Residential ROGO provided the receiver site is located in Tier 3, is not in a velocity zone, and requires no clearing; and creating an appeal process. On June 5, 2006, the Department issued a Final Order finding that the Ordinance was consistent with the Principles for Guiding Development and was therefore approved. On March 15, 2006, the County adopted Ordinance No. 010-2006, which implemented Goal 105 of the Plan by providing criteria for the designation of the tier boundaries, excluding Ocean Reef, a vested subdivision; prioritizes land for public acquisition; and contains a mechanism for property owners to obtain due process by requesting an amendment based on specific criteria. By Final Order dated June 5, 2006, the Department determined that the Ordinance was consistent with the Principles for Guiding Development was therefore approved. On March 15, 2006, the County adopted Ordinance No. 011-2006, which implemented Goal 105 of the Plan by revising the NROGO in the unincorporated part of the County between Key West and Ocean Reef, and designating the boundaries of Tiers I, II, and III and Tier III Special Protection Areas (SPA). By a Final Order dated June 5, 2006, the Department determined that the Ordinance should be approved. Finally, on March 21, 2006, the County adopted Ordinance No. 013-2006, which implemented Goal 105 of the Plan by utilizing the tier overlay maps for all land in unincorporated Monroe County between Key West and Ocean Reef, and designating the tier boundaries of Tiers I, II, and III and Tier III SPAs. By a Final Order dated June 5, 2006, the Department approved the Ordinance. On July 7, 2006, Petitioners filed their initial Petition for Formal Administrative Proceedings challenging each of the Final Orders. On September 7, 2006, Petitioners filed an Amended Petition which made minor changes to their original Petition. The substantive allegations at issue here are found in paragraphs 26 through 31 and challenge each of the Ordinances in various respects as well as the designations given to a large number of parcels of land on ninety sheets of the Tier Overlay Maps. Just prior to hearing, Petitioners voluntarily dismissed paragraphs 26(b), 26(c), and 27(d) of the Amended Petition and therefore those allegations need not be addressed. The LDRs at issue delete the HEI system, adopt the Tier System, and simplify the ROGO and NROGO point systems. The HEI system called for lot-by-lot evaluations, which failed to take into account secondary impacts of development and resulted in loss of valuable habitat. The Tier system consists of maps which designate all areas outside of mainland Monroe County (except Ocean Reef, Big Pine Key and No Name Key) as either Tier I, SPA, or Tier III.5 The Tier designations now constitute the only habitat suitability determination, replacing all HEI and other habitat qualitative analysis. Under the new simplified ROGO point system the major points are based on the Tier designation. An application for development of a parcel in Tier I receives 10 points, in a SPA receives 20 points, and in Tier III receives 30 points. The simplified NROGO has a similar point spread. These points are intended to discourage development in environmentally sensitive areas and to direct and encourage development in appropriate infill areas, while recognizing that any development has an impact on the carrying capacity of the Florida Keys. § 9.5-122.4(a). Similar language regarding the NROGO point system is found in Section 9.5-124.7(a)(1). Tier I is assigned to parcels which are not suitable for development and are suitable for acquisition to protect native upland habitat. Tier III is assigned to parcels which are suitable for development. The SPA designation is assigned to parcels in Tier III which are part of areas of tropical hardwood hammock or pinelands of greater than one acre. Because of the point differential between Tier I, SPA, and Tier III, development will be guided towards areas suitable for development. The simplified ROGO system also awards points for lot aggregation (where the owner of multiple lots preserves all, except the lot to be developed), land dedication, affordable housing, flood hazard area, service by central wastewater system, payment to the land acquisition fund, and perseverance points. However, the major points are awarded based upon the Tier designation. The points awarded by the new LDRs are consistent with the point system already adopted in the Plan. See Policy 101.5.4., which requires the County to "implement the residential Permit Allocation and Point System through its [LDRs] based primarily on the Tier system of land classifications as set forth under Goal 105." Under both the old and the new ROGO/NROGO systems, it is possible that an applicant will never receive enough points to get an allocation since a low-scoring application always competes against all other applications for the limited number of allocations. The points for dedication of land encourage applicants to donate environmentally sensitive land to the County and assist the County to avoid inverse condemnation claims. The Tier system is easy to understand and easy to implement. The Tier system will not protect every piece of valuable habitat, but does preserve ninety-nine percent of the habitat value. The Tier system (with the changes recommended below) takes simple steps to make great gains in the preservation of habitat and thus implements the recommendations of the FKCCS. Petitioners' Challenge Prioritization Within Tiers As noted above, all parcels designated Tier I receive 10 points, and all parcels designated SPA receive 20 points. Paragraph 27f of the Amended Petition alleges that these Tier points "fail to prioritize the protection of protected species based upon their status or habitat based upon its quality within each Tier." Paragraph 27a of the Amended Petition also alleges that the Tier points "fail to assign negative points for endangered species and habitat quality to direct development in Tier I away from the most important natural areas." Petitioners are correct that the Tier system avoids the fine gradations that they describe. The County has deliberately avoided a complex point system in favor of protection for all important upland habitat. The Tier system avoids individual site assessments and designates the Tiers with a meaningful spread of points to target development to Tier III instead of environmentally sensitive land. The Tier point awards adopted in the challenged LDRs are consistent with the standards of the Plan. See Policy 101.5.4. Adjacent Projects Paragraph 27h of the Amended Petition alleges that Ordinance 009-2006, which includes the ROGO point allocations, allows the granting of 30 ROGO points to projects adjacent to native vegetation in Tier I or an SPA, as long as there is no clearing. This is arbitrary as it allows the type of indirect impact which the Carrying Capacity Study determined should no longer be allowed. Recommendation 3 of the FKCCS focuses on redevelopment and infill and recognizes that there may be some minor impacts that will be acceptable in these areas. Where existing development is already causing secondary impacts, the line between Tier I and Tier III could have been drawn further into the natural area, because the edge has already been impacted. The Tier system conservatively includes the undeveloped areas already suffering from secondary impacts in Tier I. Parcel Boundaries One of the new Tier designation criteria is found in Section 9.5-256(b) (in Ordinance No. 010-2006) and reads as follows: (b) Tier boundaries: Tier boundaries shall follow property lines whenever possible, except where a parcel line or distinct geographical feature, such as a canal or roadway, may be more appropriate. Paragraphs 28a and 28b of the Amended Petition allege that Section 9.5-256(b) is "arbitrary" and that given the underlying science concerning the need to protect all remaining natural areas, it is arbitrary and capricious for the LDR to fail to require the designation in the most protective Tier for lands that meet or potentially meet criteria for more than one Tier. The parcel-based information from the local Property Appraiser is commonly utilized as a base layer of the geographical information system (GIS) data. One goal of the Tier system is to render the permit allocation system transparent to the citizens. Assigning two Tier designations to the same parcel would create confusion, since the Tier system is designed to allocate development to parcels. For those parcels which include developed or scarified (lacking vegetation) areas and habitat suitable for Tier I designation, the County properly took into account the context of the parcel and whether the LDR development standards would allow further encroachment into the habitat. The Property Appraiser's data layer assigns a parcel number to all land that is known to be owned. Some areas of the County that appear to be land on aerial photographs are not owned by taxpayers and have not been assigned a parcel number. Since the adopted Tier Maps are based on the Property Appraiser's data layer, those areas that were not assigned parcel numbers by the Property Appraiser did not receive a Tier designation.6 If an error is discovered in the Property Appraiser's data layer and an owner of an undesignated piece of land seeks a development permit, the permit cannot be issued until the error is corrected. The LDRs apply to all land in the County, and no development can be undertaken without a development permit. § 9.5-2(a). As noted above, a development permit cannot be issued without a ROGO or NROGO allocation, or an exemption. §§ 9.5-120.1(a), 9.5-120.2, 9.5-124.1, and 9.5-124.2(a). Also, a ROGO or NROGO allocation cannot be awarded without an evaluation of the number of points assigned to an application, and points cannot be assigned without a Tier designation for the parcel. §§ 9.5-122.4 and 9.5-124.7. The following land areas challenged by Petitioners were appropriately not assigned a Tier designation because the land areas are not presently recognized as parcels on the Property Appraiser's data layer: 103 (outside parcel lines); 109 (outside parcel lines); 110; 116A and 116; 117A (outside rectangular parcel); 117; 118 and 119 (near U.S. Highway 1); 120 and 121; K146e; 154, 155, and 156; 507; K546; and 568. Tier I: Wetlands Paragraph 28e of the Amended Petition alleges that "the definition of Tier I [in Ordinance 010-2006] is arbitrarily vague in that it does not specify whether wetland native vegetated areas are to be included." Paragraph 28k of the Amended Petition alleges that the same LDR "provides inadequate protection for transitional wetlands and 'disturbed' salt marsh and buttonwood wetlands." The criteria for designation of Tier I are not vague. The criteria clearly do not include wetland native vegetated areas. The criteria "are used to evaluate upland habitats." § 9.5-256(c). The term "upland native habitat" is used throughout the criteria; the term "wetland" does not appear in the criteria. Although some wetland areas have been included in Tier I if part of a larger natural area, the focus of the Tier system is on uplands. The focus of the LDR Tier criteria on uplands is consistent with the Plan. Goal 205 states that "[t]he health and integrity of Monroe County's native upland vegetation shall be protected and, where possible, enhanced." Objective 205.1 requires the County to use various data sources "to identify and map areas of upland vegetation in the Florida Keys and to prepare Tier Overlay District Maps." Policy 205.1.1 requires the County to establish criteria for designation of Tier I. These Plan criteria refer to "upland native vegetation" and "upland native habitat" and do not refer to wetlands. The fact that the Tier I criteria are focused on uplands, and not on wetlands, does not mean that wetlands are unprotected. Section 9.5-338 of the new LDRs (in Ordinance No. 008-2006) provides that No development activity, except as provided in this division, are permitted in mangroves, freshwater wetlands and in disturbed saltmarsh and buttonwood wetlands; the open space requirement is one hundred (100) percent. The one hundred percent open space ratio for mangrove, freshwater wetlands, saltmarsh, and buttonwood wetlands is repeated in existing Section 9.5-347(b), which provides that "[n]o land shall be developed, used or occupied such that the amount of open space on the parcel proposed for development is less than the open space ratio listed below for each habitat." Only limited water-related development is allowed in undisturbed wetlands. §§ 9.5-347(c)(3) and 9.5-348(d). Disturbed wetlands are protected based on their evaluation under the Keys Wetlands Evaluation Procedure. § 9.5-348(d)(6). These wetland protections are adequate, and there is no need to require that all wetlands be designated as Tier I. Also, while some parcels designated as Tier I are surrounded in part by land that appears to be submerged, the absence of a Tier I designation on the surrounding land does not render the provision arbitrary since the new LDRs establish a process whereby a County biologist makes a site visit before the land gets scored for development. Finally, Petitioners' unsubstantiated fear that federal and state agencies may not adequately enforce their regulatory authority over future wetland development in the Keys, thus requiring a further strengthening of the County's proposed LDRs, is an insufficient basis upon which to invalidate the regulation. The following parcels challenged by Petitioners were correctly designated because the parcels are submerged lands or wetlands that are not part of a larger natural area: K105a; K112d and e; K113a; K125b; K134b; K137a and b; K145b; 148 and 148/151; K250a and b; K387a; K441b; K467b and c; K538a; K538/546a; K553; K575d; K579; K581; and K581/582a. Tier I: Natural Areas Above Four Acres One of the designation criteria for Tier I boundary criteria is found in Section 9.5-256(c)(1)a. (in Ordinance No. 010-2006) and reads as follows: Natural areas including old growth as depicted on the 1985 Existing Conditions Map and new growth of upland native vegetation areas identified by up-to-date aerials and site surveys above four (4) acres in area. Paragraph 28c of the Amended Petition alleges that this criterion "is arbitrary and capricious in that the relevant science does not support a categorical determination that natural areas below that size threshold require less protection than those at or above that threshold." The existing Plan (upon which the language in Section 9.5-256(c)(1)a. is obviously patterned) provides that one criterion for Tier I designation is "natural areas including old and new growth upland native vegetated areas, above 4 acres in area." Policy 205.1.1. In this respect, the new LDR is consistent with and implements Policy 205.1.1 and adds detail concerning sources of information. However, this policy merely establishes the "minimum" standard which the County must follow in establishing the Tier I boundary designation and does not bar a smaller size threshold, if appropriate. There are no scientific studies of record which support a particular number of acres when designating natural areas for levels of protection. Studies do show, however, that as patches of habitat become smaller, the ecological function of the patch deteriorates. Given these considerations, the County points out that in order to prioritize ecological and fiscal resources, a policy decision (with respect to the size of Tier I parcels) had to be made in order to create a system that could be administered. It also points out that the Florida Forever Program seeks to purchase "large" parcels of hardwood hammock in the Keys, presumably greater in size than four acres. (The Florida Forever Program is a land acquisition program administered by the Department of Environmental Protection.) Four-acre tracts of "natural areas" are not insignificant or common; they are "huge" by Keys standards. Simply because larger parcels have more value than smaller ones does not mean that smaller hammocks in the unique, small-island geography of the Keys are unimportant. Neither the FKCSS, nor the expert panel or peer reviews related to the study, support the use of four acres as a threshold for hammock importance. Indeed, the FKCSS and the best available science support the importance of preserving as much native hammock as possible. The scientific evidence also shows that areas less than four acres serve an important biological function for wildlife in the Keys. On the other hand, there is no relevant science that supports the claim that hardwood hammocks of less than four acres are not ecologically important or require less protection than do larger hammocks. Smaller hammocks are important for the unique plant communities they contain, regardless of their importance to wildlife. Finally, it is fair to infer from the evidence that the County's "policy" decision to use a four-acre threshold was not based on scientific considerations but, in the words of one County witness, was simply a number the County Commissioners "became comfortable with." (In fact, a January 19, 2004 memorandum by the County's outside consultant, which supports the four-acre threshold, was prepared after he knew that the County had decided to use that size threshold. See Respondents' Exhibit 5.) Because there is insufficient evidence to support the four-acre size limitation used in Section 9.5- 256(c)(1)a., that provision, as now written, should not be validated. Therefore, the following parcels were placed in an incorrect category because of the arbitrary four-acre size limitation and should be re-evaluated by the County after the Tier I regulation is revised: 91 (triangle) Ranger Station; K105c; K106a and b; K113c; K124/114; K125a; K126; K135a; K135b; K139a; K141; K142b and d; K142/144/145; K145c; K146b and c; K147b; K150; K151d; K151/152; K281a; K371a, b and c; K372a; K387b and c; K400a; 439a and b; K441a; K450/457; K468 (orange area); K482; K538b; K538/546; K548/549/540; K547; K553; K553/554; K554b; K575a; K575c; and K576. Tier I: Known Locations of Threatened and Endangered Species Another designation criterion for Tier I is found in Section 9.5-256(c)(1)e. (in Ordinance No. 010-2006) and provides as follows: Known locations of threatened and endangered species as defined in section 9.5-4, identified on the Threatened and Endangered Plant and Animal Maps or the Florida Keys Carrying Capacity Study, or identified in on-site surveys. Paragraph 28d of the Amended Petition alleges that limiting Tier I protections to known locations identified on the Threatened and Endangered Plant and Animal Map is contrary to the science as the referenced maps are not the best available science and limiting protection to "known locations" of such species arbitrarily fails to protect locations which have not yet been verified as "known" locations, but which may or are likely to be important to protected species. The Plan already provides that one criterion for Tier I designation is "known locations of threatened and endangered species." See Policy 205.1.1. This new LDR is consistent with and implements Policy 205.1.1 and adds detail concerning sources of information. In addition to consistency with the Plan, the known locations of threatened and endangered species criterion is a rational standard. Contrary to the allegations in the Amended Petition, the criterion is not limited to known locations as shown on the Threatened and Endangered Plant and Animal Maps. Known locations as identified in the FKCCS maps, and as identified in on-site surveys, also meet this criterion for inclusion in Tier I. The thrust of Petitioners' allegation is that the criterion ought to include suitable or potential habitat in Tier I, rather than known locations. "Known locations" means a location where the threatened or endangered species has actually been observed. "Potential habitat" or "suitable habitat" includes areas where the species has not been observed, but the habitat is similar to areas where the species has been seen. With the amendment of Tier I boundaries to an area of less than four acres, the vast majority of suitable habitat will be included in that Tier. See Finding of Fact 65, supra. Petitioners also contend that the Tier system should be based on the latest protected species maps, and that those used by the County are outdated and flawed. (Some of the data and imagery used by the County are several years old. This is presumably due in part to the fact that the process of formally adopting these LDRs began several years ago, and the County used data existing at that time.) There are now available United States Fish and Wildlife Service habitat maps reflecting 2006 conditions, which would obviously be more desirable to use. At some point in time, however, the process must come to an end; otherwise, the mapping studies would be constantly changing as new data became available, new site visits and re-evaluation of the parcels would be required each time the data were revised, and there would be no finality to the process. Tier I: Roads Paragraph 28e of the Amended Petition alleges that the Tier I designation criteria are arbitrarily vague because the criteria do not "specify . . . how roads will impact the determination of the relevant 'size area.'" The failure to address every conceivable factor does not render the Tier I designation criteria arbitrary or vague. The Tier I designation is intended to focus on larger areas, and the larger roads such as U.S. Highway 1 would have been considered a break between natural areas. However, this regulation should be distinguished from the determinations in Finding of Fact 95, infra, which relate to a lack of standards when constructing roads in the much smaller SPA areas. Tier I: Request for Designation Section 9.5-256(e) (in Ordinance No. 010-2006) provides that any individual may submit an application that an area meets the Tier I criteria, that a special master shall hold a public hearing on the application, and that the special master will render a written opinion to the planning commission and board of county commissioners either that the application meets the criteria for designating the lands as Tier I or that the documentation is insufficient to warrant a map amendment. Paragraph 28j of the Amended Petition alleges that Section 9.5-256(e) "grants the County Commission unfettered discretion to adopt or not adopt a special master recommendation to change a parcel's Tier designation." Subsection (e) of Section 9.5-256 was not changed by the new LDRs; therefore, the new LDR grants nothing that is not already in the LDRs. Moreover, subsection (e) provides a standard for the Commission's decision, that is, whether "the application meets the criteria for designating the lands as Tier I." Tier I: Six Annual Allocations Section 9.5-122(a)(6) of the new LDRs (in Ordinance No. 009-2006) provides as follows: Limit on number of Allocation Awards in Tier I: Except for Big Pine Key and No Name Key, the annual number of allocation awards in Tier I shall be limited to no more than three (3) in the Upper Keys and three (3) in the Lower Keys. Paragraph 27a of the Amended Petition alleges that Section 9.5-122(a)(6) is vague, arbitrary, and capricious because it does not specify how the six allocations will be determined. Section 9.5-122(a)(6) does not over-ride the rest of the Tier system. Each application must still garner enough points to out-compete the other applications. Section 9.5- 122(a)(6) provides a further layer of protection for Tier I parcels by specifying that, even if a larger number of Tier I parcels have enough points for a ROGO or NROGO allocation, no more than six may receive allocations in each year. Tier I: Off-Shore Islands Section 9.5-256(c)(1)f. of the new LDRs (in Ordinance No. 010-2006) provides that one criterion for designation as Tier I is "Conservation, Native Area, Sparsely Settled, and Off- Shore Island Land Use Districts." The adopted Tier Maps show some off-shore islands without a Tier designation. The County and Department have agreed with Petitioners that the Tier Maps should show the following off-shore islands as Tier I: K250c; 251; 252; 256; 390 (three islands); 4151 (two islands); K546a; 567; and K582. SPA: One Acre of Hardwood Hammock or Pinelands Section 9.5-256(c)(3) of the new LDRs (in Ordinance No. 010-2006) establishes that the fundamental criterion for designation as a SPA is as follows: Designated Tier III lands located outside of Big Pine Key and No Name Key with tropical hardwood hammock or pinelands of greater than one acre shall be designated as Special Protection Areas. Paragraph 28f of the Amended Petition alleges that the one-acre criterion for SPA is inconsistent with the best available science, which does not support a categorical conclusion that habitat patches of one acre or less is size require less protection than those placed in the SPA category. The existing Plan provides that at a minimum, "[d]esignated Tier III lands located outside of Big Pine Key and No Name Key with tropical hardwood hammock or pinelands of one acre of greater shall be designated as Special Protection Areas." Paragraph 4, Policy 205.1.1. In this respect, the new LDR is consistent with and implements that provision. As noted above, however, this does not bar the County from using a smaller acreage threshold, if appropriate. Like the four-acre threshold for Tier I parcels, a fair inference to be drawn from the evidence is that the establishment of a one-acre threshold for SPA parcels with tropical hardwood hammock or pinelands was a "policy" decision by the County Commissioners, was simply a number they felt "comfortable" with, was not based on the best available science, and is therefore arbitrary. Indeed, this "policy" decision was inconsistent with a staff recommendation made in 2004 that Tier III include "isolated upland habitat fragments of less than half an acre." See Petitioners' Exhibit 29, page 8; Respondents' Exhibit 9, page 8. The County acknowledges that current regulations that govern site visits for the HEI are based on valid science appropriate to the Keys. Under that system, the County considers only those hammock patches less than .37 of an acre to have no ecological value. Further, the County now awards positive points to patches of slightly more than one- third of an acre for having ecological value. Thus, it can be reasonably inferred that patches greater than one-third of an acre have ecological value and should be afforded more protection than now provided. Given the lack of scientific evidence to support the one-acre threshold, the validity of Section 9.5-256(c)(3), as now written, cannot be sustained. To support the one-acre threshold, the County points out that its staff performed site visits to the parcels in question to determine whether a potential SPA was really composed of hammock or pinelands and whether it was an acre or greater in size. However, this type of field work does not address the issue of whether the one-acre threshold is supported by the best available science. Accordingly, the following parcels were incorrectly placed in another category because of the arbitrary one-acre size limitation and should be re-evaluated after the SPA regulation is revised: K105b; K105/106; K106c and d; K112a, b, c and f; K113b, d and e; K114; K124/125; K125b, c and e; K133a, b, c, d, K133/134, K134a, c and d; K134a; K139b; K142a and c; K144/145 and 145a, d and e; K146a and d; K147a and c; K151a, b and c; K152a and b; K370-371; K371d; K372b; K385; K400b; K412b; K413a and b; K414b; K425; K441b; K450a, b and d; K467a, d and e; K549; K554a; K575/576; and K581/582. SPA: 40 percent Invasives Section 9.5-256(c)(3)a. of the new LDRs (in Ordinance No. 010-2006) provides conditions which "constitute a break in pinelands or tropical hardwood hammock for calculating the one- acre minimum patch size for designation" as a SPA. One of these conditions is "[a]ny disturbed pinelands or hardwood hammock with invasive coverage of forty (40) percent or more." § 9.5- 256(c)(3)a.2. Paragraph 28g of the Amended Petition alleges that Section 9.5-256(c)(3)a.2. "is contrary to the science, which calls for the removal of exotic vegetation to restore habitat and re-establish contiguity." Taking invasive infestation into account in determining whether a patch is large enough to qualify as a SPA is consistent with the FKCSS, which states Successful restoration of lands to create large patches of terrestrial habitats and to reestablish connectivity seems improbable. Restoration would require the conversion of large developed areas to native habitat, a goal that would face legal constraints, as well as high costs, uncertain probability of success, and a long timeframe for execution. Continuing and intensifying vacant land acquisition and restoration programs may provide more and faster returns in terms of consolidating protection of habitats in the Florida Keys. Since the resources to address these issues are not infinite, money is better spent acquiring larger patches in Tier I than in trying to restore the smaller patches with exotic vegetation. SPA: Central Sewer Section 9.5-256(c)(3)b.1. of the new LDRs (in Ordinance No. 010-2006) provides that the owners of lots designated as SPA may petition for a rezoning to Tier III if [t]he lot will be served by a central sewer and the wastewater collection system has an approved permit that was effective 3/21/06 to construct the system on file from the Department of Environmental Protection; Paragraph 28h of the Amended Petition alleges that Section 9.5-256(c)(3)b.1. is arbitrary because it "allows for the removal of parcels from the SPA Tier for [a reason] unrelated to their habitat value, such as service by central sewer " The March 21, 2006 date in Section 9.5-256(c)(3)b.1. means that this condition for removal from SPA applies only in the service area of the North Key Largo sewage treatment plant. The County and Department determined that development should be encouraged in the area served by the North Key Largo sewer plant, even though habitat that otherwise qualified for designation as SPA existed in that service area. The Principles for Guiding Development require the County and Department to improve nearshore water quality, and the best way to accomplish this goal is to construct central sewer systems to replace septic tanks. The Work Program adopted by the Administration Commission requires the County to fund and construct the North Key Largo central sewer system, which cannot be financed or operated without a customer base. Designating parcels as SPA in the North Key Largo service area would discourage development in that service area. In adopting and approving this regulation, the County and the Department appropriately balanced the competing goals of the Principles for Guiding Development. Given these unique circumstances, the LDR is not arbitrary. SPA: Sixteen Foot Road Section 9.5-256(c)(3)b.2. of the new LDRs (in Ordinance No. 010-2006) provides that owners of lots designated as SPA may petition for a rezoning to Tier III if [t]he lot is located within a one acre patch of hammock that is divided from the other lots that make up the one acre or more patch by a paved road that is at least 16 feet wide. Paragraph 28h of the Amended Petition alleges that this provision is arbitrary because it "allows for the removal of parcels from the SPA Tier for [a reason] unrelated to their habitat value, . . . [such as] the existence of a paved road at least 16' wide." The new regulation provides that if the owner of an undeveloped parcel designated as SPA constructs a sixteen-foot wide paved road through his property, he may then petition the County to rezone the property as Tier III simply because a paved road has been built. In providing this opportunity to rezone and develop a SPA parcel, however, the County failed to impose a corresponding requirement that the owner demonstrate that the functionality of the existing hammocks has been compromised by the road. By omitting this requirement, or imposing any other reasonable constraint, Section 9.5-256(c)(3)b.2. is arbitrary because it allows a property owner to circumvent a SPA designation by merely building a paved road. SPA: Survey Section 9.5-256(c)(3)c. of the new LDRs (in Ordinance No. 010-2006) provides that [a]ny hammock identified in the County's data base and aerial surveys as 1.00 to 1.09 acres in area shall be verified by survey prior to its designation as Tier III-A. A hammock that is deemed by survey and a field review by County Biologists to fail the minimum size criteria shall have the Special Protection Area designation removed from the subject parcel. Paragraph 28i of the Amended Petition alleges that Section 9.5-256(c)(3)c. is arbitrary because it requires a survey of any hammock less than 1.09 acres before designating it Tier III-A, while the balance of this LDR fails to require a survey of parcels below the size threshold set for Tier I before concluding that a parcel should not be placed in Tier I. The Tier designations were accomplished primarily by using GIS mapping data. When applied to the larger Tier I areas, a tenth of an acre is a small error. However, when applied to the much smaller SPA, a tenth of an acre error can be significant. The County's choice of surveying the smaller SPAs, while not treating the Tier I areas in the same manner, was not arbitrary. It is also reasonable to assume that in administering this regulation, the County will require a landowner to use a qualified surveyor to guarantee accuracy of the survey, and not allow the landowner to submit a survey that is self-serving and inaccurate. SPA: Development Standards Paragraph 28l of the Amended Petition alleges that "[t]he development standards for Tier III-A (SPA) are inadequate to protect the natural areas placed in that Tier." The development standards which apply specifically to parcels designated as SPA are Residential development is discouraged in SPAs, which receive 20 points towards a ROGO application, while Tier III parcels receive 30 points. § 9.5-122.4(a). Non-residential development is discouraged in SPAs, which receive 10 points towards an NROGO application, while Tier III parcels receive 20 points. § 9.5- 124.7(a)(1). No points are awarded for lot aggregation for a ROGO application which proposes clearing of any native upland vegetation in a SPA. § 9.5-122.4(c). No more than 40 percent of native upland vegetation, up to a maximum of 7,500 square feet, may be cleared in Tier III, including SPAs. § 9.5-347(b). For applications under consideration for sixteen consecutive quarters, the preferred County action is purchase for SPA, while an allocation award is available for Tier III that is not suitable for affordable housing. §§ 9.5-122.3(f) and 9.5-124.7(f). All generally applicable development standards also apply to SPAs, such as the environmental design criteria in Section 9.5-348; the density and intensity limitations in Sections 9.5-261, 9.5-262, 9.5-267, and 9.5-269; the shoreline setback requirement in Section 9.5-249; and the scenic corridor and bufferyard requirements in Sections 9.5-375 through 9.5-381. These development standards applicable in SPAs are adequate to protect these natural areas. Clearing on Aggregated Lots Section 9.5-347(e) of the new LDRs (in Ordinance No. 008-2006) establishes clearing percentages within the Tiers. For example, forty percent of native upland vegetation, up to a maximum of 7,500 square feet, may be cleared on a Tier III lot. Under Section 9.5-122.4(c) of the new Tier System, an applicant can receive four additional points by aggregating a contiguous vacant, legally platted lot within Tier III. Lot aggregation is "intended to encourage the voluntary reduction of density " Paragraph 26e of the Amended Petition (as orally modified at the hearing) alleges that new Section 9.5-347(e) "allows clearing on lots that receive points for aggregation, thus failing to protect the natural areas that aggregation is designed to protect." However, Section 9.5-122.4(c) provides that No points for aggregation shall be awarded for any application that proposes the clearing of any native upland habitat in a Tier III-A (Special Protection Area) area. No aggregation of lots will be permitted in Tier I. Therefore, applications which receive points for aggregation will not fail to protect natural areas because of clearing. Not-For-Profit NROGO Exemption in Tier III Section 9.5-124.3(a) provides that certain types of nonresidential development do not need an NROGO allocation. The exemptions include such uses as public/government uses, certain industrial uses, and agriculture uses. For example, Section 9.5-124.3(a)(4) of the new LDRs (in Ordinance No. 011-2006) makes the following changes to one such exemption: Development activity for certain not-for- profit organizations: Except for the non- public institutional uses on Big Pine Key and No Name Key pursuant to section 9.5- 124.2, non-residential development activity within Tier III designated areas by federally tax exempt not-for-profit educational, scientific, religious, social, cultural and recreational organizations, which predominately serve the county’s permanent population, if approved by the planning commission after review and recommendation by the planning director. This exemption is subject to the condition that a restrictive covenant be placed on the property prior to the issuance of a building permit. The restrictive covenant shall run in favor of Monroe County for a period of at least twenty (20) years. Any change in the use or ownership of the property subject to this restrictive covenant shall require prior approval of the planning commission, unless the total floor area exempted by the planning commission is obtained through an off-site transfer of floor area and/or non residential floor area allocation pursuant to this chapter. If the total amount of floor area that is transferred and/or allocated meets or exceeds the total amount of floor area exempted, the restrictive covenant shall be vacated by the County. This not-for-profit exemption is not applicable to non-residential development proposed within a Tier I designated area. those areas proposed for acquisition by government agencies for the purpose of resource protection. Non residential development approved under this section may not be changed to a for-profit use without permit approvals and a NROGO application for and receipt of a floor area allocation. (Underscored portions represent new language while the strike-through language represents deleted portions) Paragraph 29a of the Amended Petition alleges that new Section 9.5-124.3(a)(4) "arbitrarily allows a 'not-for- profit' NROGO exemption in the SPA that is not allowed in Tier I." The not-for-profit NROGO exemption is not created by the new LDRs; the new LDRs adopt new restrictions for the existing exemption. Moreover, there is nothing arbitrary about treating SPA differently than Tier I; the two designations are treated differently throughout the Tier system. The Tier I areas receive greater protection than the SPA areas as a matter of design. Existing Conditions Report The LDRs at issue in this case delete language in old Section 9.5-336, which references an "Existing Conditions Map," and create a new Section 9.5-336, which references an "Existing Conditions Report." (See Ordinance No. 008-2006). The new section requires that an application for land containing upland native vegetation communities must include a report that "identifies the distribution and quality of native habitat and any observed endangered/threatened or protected species within the parcel proposed for development." Paragraph 26a of the Amended Petition alleges that new Section 9.5-336 "provides inadequate protection for endangered/threatened or protected species that are not observed on the surveyed parcel, and does not require the use of the most current state and federal protected species lists." Paragraph 26d of the Amended Petition also alleges that new Section 9.5- 336 "fails to require the identification of potential habitat of protected species." Petitioners have mistaken the significance of the existing conditions report in the Tier System. Under the old HEI system, the habitat analysis required by old Section 9.5-337 was used to determine the quality of habitat on the surveyed parcel for the purpose of assigning points. Under the Tier System, each parcel has already been assigned to a Tier. The existing conditions report is used for the purpose of locating development on the parcel that avoids the most valuable habitat. There is nothing in new Section 9.5-336 that suggests that the most current state and federal lists will not be used in the preparation of the existing conditions report. Affordable Housing At least twenty percent of the ROGO allocations can only be used for affordable housing. See old § 9.5-122(b)(1)a.; new § 9.5-122(a)(3)a.; Policy 101.2.4. Approximately 7,000 families in Monroe County are "cost burdened," in that they pay more than thirty percent of their income for housing, which is part of the affordable housing crisis in the County. Section 9.5-266 of the old LDRs provides standards for affordable housing and grants an increase of density in some land use districts if the density is used for affordable housing. The new LDRs (in Ordinance No. 009-2006) make the following minor changes to Section 9.5-266(a)(8): (8) If an affordable or employee housing project or an eligible commercial apartment(s) designated for employee housing contain(s) at least five (5) dwelling units, a maximum of twenty (20) percent of these units may be developed as market rate housing dwelling units. The owner of a parcel of land must develop the market rate housing dwelling units as an integral part of an affordable or employee housing project. In order for the market rate housing dwelling units to be eligible for incentives outlined in this section, the owner must ensure that The use of the market rate housing dwelling unit is restricted for a period of at least fifty (50) thirty (30) years to households that derive at least seventy (70) percent of their household income from gainful employment in Monroe County; and Tourist housing use and vacation rental use of the market rate housing dwelling unit is prohibited. Paragraph 27g of the Amended Petition alleges that Section 9.5-266(a)(8) "allows housing units permitted as 'affordable or employee housing' to be used for market rate housing." The amendments to Section 9.5-266(a)(8) make only a minor adjustment in the existing incentive to include affordable or employee housing in market rate projects. Moreover, neither the old nor the new Section 9.5-266(a)(8) allows affordable housing ROGO allocations to be used for market rate housing. This section allows a developer to use market rate ROGO allocations together with affordable housing ROGO allocations to take advantage of the increased density available to affordable housing projects, while also providing an economic incentive to construct affordable housing. The new LDRs also address affordable housing by increasing the density for affordable housing in the Suburban Commercial district from fifteen dwelling units per acre to eighteen, see Section 9.5-266(a)(1)b., and increasing the length of time that an affordable housing unit must remain affordable from thirty years to privately financed projects and fifty years for publicly financed projects to ninety-nine years for all affordable housing projects. § 9.5-266(f)(1). Market Rate Housing Awards from Future Allocation Periods Section 9.5-122.1 (in Ordinance No. 009-2006) provides the application procedure for residential ROGO allocations. Subsection (h) in the old LDRs, which has been renumbered and amended as subsection (g) in the new LDRs, authorizes borrowing from future ROGO allocations in limited circumstances. Paragraph 27b of the Amended Petition alleges that new Section 9.5-122.1(g)(1), which allows the Planning Commission to award additional dwelling units from future annual allocations to complete projects, "is arbitrary and capricious as it provides no standards or limits on whether or to what extent, such additional allocations can be awarded." Among other things, Ordinance No. 009-2006 makes the following changes to Section 9.5-122.1, which pertains to the authority of the Planning Commission to award units from future allocations: ((h) (g) Borrowing from future housing allocations: ((1) Subject to approval by the board, t The planning commission may award additional units from future quarterly annual dwelling unit allocations periods to fully grant an application for multi-family residential units, if such an application receives an allocation award for some, but not all, of the units requested because the applicant seeks more units than are available during the allocation period. * * * * (3) The planning commission shall not reduce any future market rate quarterly allocation by more than twenty (20) percent, but may apply the reduction over any number of future quarterly allocation periods and shall not apply these reductions to more than the next five (5) annual allocations or twenty (20) quarterly allocations. The amendments to the LDRs do not create the authority of the Planning Commission to award future allocations to complete projects; such authority already existed. The amendments to Section 9.5-122.1 limit the extent of the additional allocations. In addition, the Plan contemplates that residential allocations can be borrowed from future quarters. See Policy 101.2.3, which provides procedures for the annual adjustment of the number of permits. Affordable Housing Awards from Future Allocation Periods The old LDRs provided the following guidance to the Planning Commission for awarding future allocations: "Multi- family affordable housing or elderly housing projects shall be given priority." Section 9.5-122.1(g)(4) of the new LDRs (in Ordinance No. 009-2006) provides that [t]he board of county commissioners, upon recommendation of the planning commission, may make available for award up to one- hundred (100) percent of the affordable housing allocations available over the next five annual allocations or twenty (20) quarterly allocations. Paragraph 27c of the Amended Petition alleges that new Section 9.5-122.1(g)(4) is arbitrary and capricious and inconsistent with the comprehensive plan, which does not allow for allocations beyond the annual caps. In addition, this allowance may result in unacceptable evacuation and environmental impacts. As stated above, the Plan contemplates that residential allocations can be borrowed from future quarters. See Policy 101.2.3, which provides that one of the factors to be considered in the annual adjustment of the number of permits is the "number of allocations borrowed from future quarters." The borrowing forward for affordable housing projects will assist the County in addressing the affordable housing crisis. As noted above, approximately 7,000 families in the County are "cost-burdened" by paying more than thirty percent of their income for housing. See Finding of Fact 111, supra. The annual permit caps are the result of a determination that there is a finite amount of development that can be allowed in the Keys without exceeding a 24-hour evacuation time (in the event of hurricanes). While County witness Conaway believes that the regulation is subject to the 24-hour evacuation cap, she acknowledged that it does not specifically say that. Even so, in making its annual evaluation, the County (and its planning staff) will know what the clearance time is from a particular area of the Keys and the amount of future allocations that can be issued without exceeding the 24-hour evacuation cap. Therefore, it is reasonable to assume that the new LDR will not result in unacceptable evacuation impacts. Administrative Relief Both the old and the new LDRs provide administrative relief for residential applications which have been unsuccessful in seeking a ROGO application. See old § 9.5-122.2(f) and new § 9.5-122.3. The administrative relief available under both the old and the new sections is a grant of a ROGO allocation, an offer to purchase the parcel at fair market value, or such other relief as appropriate. The old section provides administrative relief if the application has been considered for at least three consecutive annual allocation periods, and the new section if the application has been considered for sixteen consecutive quarterly allocation periods. The old and new NROGO sections have a similar provision. See old § 9.5-124.7 and new § 9.5- 124.7(f). Paragraphs 27e and 29b of the Amended Petition allege that new Sections 9.5-122.3(f) and 9.5-124.7(f) fail "to establish any required facts or findings as a condition precedent before the County can provide a form of administrative relief other than an offer to purchase." However, the new sections provide more guidance than the old LDRs because they specify that an offer to purchase at fair market value shall be the preferred action for Tier I parcels, SPA parcels, and Tier III parcels suitable for affordable housing. Also, the new LDR sections are consistent with Plan provisions regarding administrative relief. See Policies 101.6.1, 101.6.5, and 105.2.12. Protection of Listed Species Paragraph 28m of the Amended Petition alleges that Ordinance 010-2006, which adopts changes to Section 9.5-256, "provides inadequate protections for threatened or endangered species or species of special concern." Besides the thresholds used for Tier I and SPA habitat patches (which presumably will be changed to smaller areas in the future), the system uses other elements to place lands in Tier I or SPA and adequately protects the majority of undeveloped upland habitat in the Keys. The Tier system is robust, easy to administer, and implements the guidelines of the FKCCS. Protection of Habitat Paragraph 31 of the Amended Petition, as an ultimate fact, alleges that "[t]he land development regulations approved by the Final Orders are inadequate to protect the tropical hardwood hammock, pine rockland, and transitional wetland communities in the Keys." The Tier system is not intended to protect wetland communities; that is accomplished by other provisions in the LDRs. (The tier designation is primarily designed to protect upland native habitat.) The new LDRs strongly discourage development in tropical hardwood hammock and pine rockland communities. The 20-point spread between Tier I and Tier III and the 10-point spread between SPA and Tier III make it very difficult to develop in SPA and especially in Tier I. Mapping Errors As might be expected, any county-wide mapping exercise of this magnitude will inevitably include some errors. The County and Department agree with Petitioners that the following parcels were incorrectly designated: 71 (Tier III rectangle) should be Tier I; 91 (2 small lots) should be Tier I; 101 (2 small lots) should be Tier I; 102&103 (Tier 0 parcel) should be Tier I; 109 (lower right corner) should be Tier I; 117A (rectangle) should be Tier I; K124a should be SPA; K125d should be Tier I; K140/141 should be Tier I; K251/252 should be Tier I; K281b should be Tier I; K400b should be SPA; K401b should be Tier I; K412a should be Tier I; K413b and c should be Tier I; K414a should be Tier I; K450c and e should be Tier I; 526 (peninsula north of US 1) should be Tier I; K554c and d should be Tier I; K566/567 should be Tier I; K575b (except for 1 developed lot) should be Tier I; and K581 (portion drawn by Trivette) should be Tier I. aa. Big Pine Key Tier Maps 334, 344, and 345 are included in the Amended Petition and in Petitioners' Exhibits 67 and 68, both entitled "Parcels Where Tier Designation Changes Recommended." However, Petitioners offered no testimony concerning these maps. Tier Maps 334, 344, and 345 are located on Big Pine Key. The Tier Overlay Maps for Big Pine Key and No Name Key were adopted by a separate Ordinance which is not at issue in this case. bb. Consistency with the Principles for Guiding Development The Principles for Guiding Development for the Florida Keys Area of Critical State Concern are found in Section 380.0552(7), Florida Statutes, and are the benchmark by which to measure the validity of the LDRs. They read as follows: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Except for those portions of new Sections 9.5- 256(c)(4)a., 9.5-256(c)(3), and 9.5-256(c)(3)b.2, which relate to the threshold sizes for Tier I and SPA natural areas, and the rezoning of SPA parcels based upon the construction of a road, and the parcels identified in Findings of Fact 65, 80, 86, and 132, which were incorrectly designated, the new LDRs are consistent with, and implement, the Plan. Also, with the same exceptions, the new LDRs strengthen the County's capability for managing land use and development by providing a transparent, easily implemented ROGO system that can be understood by the citizens of the County. The new Tier system avoids reliance on the varied HEI interpretations of individual biologists and simplifies implementation for County planning staff. The new LDRs are not intended to protect shoreline and marine resources, which are protected by other provisions in the LDRs. However, as development is curtailed in the upland areas, the downstream effects of runoff will be limited. The new LDRs are not intended to protect freshwater wetlands or dune ridges and beaches; these are protected elsewhere in the LDRs. Except for those provisions and parcels described in Finding of Fact 135, the new LDRs protect upland resources, tropical biological communities, and native tropical vegetation by awarding fewer points to these sensitive upland areas and directing development to scarified and infill areas. The new LDRs do not address sound economic development. The new LDRs are not intended to address quality of water, although they do promote good water quality to some extent by preserving natural habitat and open space, and thus reducing runoff. With the same exceptions identified in Finding of Fact 135, by protecting the vast majority of the upland habitat and directing development to scarified and infill areas, the new LDRs will help maintain the scenic value and the historic character of the Keys. With the same exceptions, the new LDRs also protect the small patches of hammock that contribute to the community character of the Keys. The new LDRs do not protect the historical heritage of the Florida Keys, but also do nothing to harm the historical heritage. The new LDRs encourage the public purchase of lands within the wildlife refuges and thus protect the value and efficiency of those refuges. The new LDRs also encourage the cost-effective installation of central sewer collection and disposal facilities by directing development to subdivisions which are fifty percent built-out. By directing growth to Tier III areas, the Tier system allows the County to avoid the construction of public infrastructure to serve Tier I areas. The new LDRs increase the density for affordable housing in the suburban commercial areas and double the length of time that an affordable unit must remain affordable. The new LDRs also take steps to make adequate affordable housing available in the Keys by providing that a developer may receive a density bonus by building some market rate housing as part of an affordable project. The new LDRs maintain the limitation on the annual number of development allocations and allow the County to maintain its ability to evacuate during a hurricane. With the exception of those regulations and parcels identified in Finding of Fact 135, the new LDRs designate the majority of the Keys as Tier I, which is intended for public purchase. The only way to maintain the hurricane evacuation time is to purchase developable property and retire the development rights. Except as to those LDRs and parcels identified in Finding of Fact 135, the remaining LDRs are consistent with the Principles for Guiding Development as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order approving Ordinance No. 008-2006, except for the deletion of Section 9.5-342; Ordinance No. 009-2006; Ordinance No. 010-2006, except for Sections 9.5-256(c)(4)a., 9.5- 256(c)(3), and 9.5-256(c)(3)b.2.; Ordinance No. 011-2006; and Ordinance No. 013-2006, except for the parcels identified in Findings of Fact 65, 80, 86, and 132. DONE AND ENTERED this 26th day of June, 2007, in Tallahassee, Leon County, Florida. S 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 26th day of June, 2007.
Findings Of Fact Respondent, Circle K Corporation (Circle K), is the owner of a piece of property at mile marker 30.5, big Pine Key, Monroe County, Florida. As sited, the subject property is located within that part of Monroe County designated as an Area of Critical State Concern (ACSC). On June 26, 1986, Circle K applied to Monroe County for a building permit to construct a convenience store, with two service islands for the sale of gasoline, upon the subject property. As sited, the property occupies the southeast corner of the intersection of U.S. 1, also known as State Road 5, and Chapman Road. As proposed, the convenience store would face U.S. 1, and would accord its patrons direct access to U.S. 1 by way of a curb cut that was located 80 feet from the intersection of U.S. 1 and Chapman Road, and direct access to Chapman Road by way of a curb cut that was located 60 feet from the intersection of U.S. 1 and Chapman Road. Attached hereto as Appendix II is a copy of Circle K's site plan, which graphically depicts the proposed project and curb cuts. Pertinent to this case, that portion of Circle K's plan which sought approval to gain direct access to U.S. 1 by way of a curb cut that was located 80 feet from Chapman Road was denied by Monroe County's Planning Director. Circle K appealed that decision to the Monroe County Planning Commission which, on September 3, 1987, reversed the decision of the planning director and approved Circle K's proposal. In so doing, the planning commission articulated the following reasons for its action: The decision of the Planning Director is overturned and the appeal is granted pursuant to: (1. Section 9-1404 granting temporary parallel access on the basis that to deny this would create a safety hazard. AND (2. The FD0T permit is to be considered superior to local driveway permitting. The FDOT (Florida Department of Transortation) permit referenced in the Commission's decision was a connection permit issued by FDOT to Circle K on May 28, 1987. That permit authorized Circle K to connect its driveway to U.S. 1, provided the connection was constructed in accordance with existing FDOT regulations, and carried the following legend conspicuously stamped thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On September 25, 1987, the Monroe County Building and Zoning Department, in accordance with the Commission's decision, issued Permit No. A18731 to Circle K. That permit approved Circle K's plan to construct a convenience store on the subject property, with direct access to U.S. 1 as initially proposed. Petitioner, Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission) contesting the propriety of the aforesaid permit (development order) because it authorized development with direct access to U.S. 1 by way of a curb cut spaced less than 400 feet from an existing street on the same side of U.S. 1. Monroe County land development regulations Pertinent to this case, Monroe County Land Development Regulations (MCLDR) provide: ... ACCESS STANDARDS Sec. 9-1401. Major Road Access. No structure or land shall be developed, used or occupied unless direct access to U.S. 1 or County Road 905 is by way of a curb cut that is spaced at least 400 feet from any other curb cut that meets the access standards of the Florida Department of Transportation or an existing street on the same side of U.S. 1 or County Road 905. Sec. 9-1402. Parallel Access. Lots that cannot meet the major access standard in Section 9-1401 shall take access from platted side streets, parallel streets or frontage roads. Such access shall be acquired by installing a parallel street or frontage road, through combined parking lots or by combining lots by sharing drives, or the provision of easements of access. * * * Sec. 9-1404. Temporary Access. No applicant shall be denied development approval for the sole reason that the lot cannot meet the requirements of Sections 9-1401 or 9- 1402. To provide access the Director of Planning shall issue a temporary access permit provided that the landowner's site plan provides for the eventual connection to a parallel access on an adjoining property, and that the owners agree, with suitable legal documents to close the temporary access when connection to adjoining properties is feasible. The foregoing provisions of Monroe County's land development regulations have been found consistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern, and constitute land development regulations for the Florida Keys Area of Critical State Concern in Monroe County.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue permit number A18731, and deny Circle K's application for such permit. It is further recommended that such final order specify those items set forth in paragraph 7, Conclusions of Law, as the changes necessary that would make Circle K's proposal eligible to receive the requested permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1988.
