Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulation of facts, the following relevant facts are found: Petitioner Health Care and Retirement Corporation America (HCR) is an Ohio corporation that operates nursing homes in five states and in Florida. On March 23, 1982, petitioner was granted a Certificate of Need to construct a 120-bed nursing in Pinellas County. she expiration date on that Certificate as March 22, 1983. On March 18, 1982, petitioner was granted a Certificate of Need to construct a 120-bed nursing home in Pasco county, with an expiration date of march 17, 1983. Petitioner was issued a Certificate of Need on October 27, 1981, width an expiration date of October 26, 1982, for nursing home facility in Palm Beach County. Having experienced difficulties in the acquisition of a site for the project, petitioner requested, by letter dated October 8, 1982, an extension of the termination date of the Certificate of Need, and provided HRS with an explanation of the site selection difficulties, a notarized option to purchase property, a financial commitment letter and advised HRS that it had a meeting with the State architect from respondent's Office of licensure and Certification (OLC) on November 8, 1982. Petitioner was aware from its experience with Palm Beach County project of the busy schedule of HRS's OLC early as October 8, 1982. Although the preliminary architectural plans for the Palm Beach County project had not been submitted to the OLC as of the date of the original termination of the Certificate of Need, HRS granted petitioner a six-month extension of its Certificate of Need for that project. As of the date of the hearing in this proceeding, construction on the Palm Beach County project had not begun. Representatives from petitioner had a meeting with OLC officials on February 21, 1983, to review plans for another facility located in Port Charlotte. It was during that meeting that appointments were made for the review and approval of the preliminary plans for the Pasco and Pinellas County projects. The meeting date set for the review of the Pasco County project was March 22, 1983. The meeting date set for the Pinellas County project review was March 29, 1983. As of February 21st, petitioner had not yet prepared the plans for these projects because it was heavily involved in other projects. It was anticipated that the plans for the Pasco County project could be completed in two weeks because it would utilize the Company prototype plan. Preparation of the plans for the Pinellas County project was expected to take longer (from two to six months) because of site conditions and configurations. By letters dated February 17, 1983, and February 22, 1983, respondent's Medical Facilities Consultant Supervisor, Nathaniel Ward, advised the petitioner's Project Planner that 11 months had passed on its two Certificates of Need for nursing homes in Pasco and Pinellas Counties. Those letters further advised petitioner that a status report was due and that the Certificates could be extended for an additional period of up to six months upon the showing of good cause by the applicant for the extension. The rule containing the method and criteria for submitting a request for an extension for good cause was fully set forth in the respondent's letter to petitioner, and petitioner was advised that failure to commence construction or to secure a Lime extension by the termination dates of the Certificates of Need would be cause for HRS to declare the Certificates null and void. By letter to HRS dated March 2, 1983, petitioner requested a six-month extension on its Pasco County Certificate of Need. The letter noted that extreme difficulties in locating a site for the project had been encountered and that petitioner had now selected a site and had received assurances from the underwriter and county officials regarding financing. Respondent HRS, making reference to its prior letter of February 17, 1983, requested petitioner, by letter dated March 4, 1983, to furnish the required documentation for considering an extension. On March 17, 1983, La Donna Cody, a member of the law firm representing petitioner, brought some documents to Nathanial Ward's HRS office in Tallahassee. These documents included an "Option to Purchase" certain land in Pasco County, said option to be exercised on or before April 17, 1993. The option was dated March 17, 1983, was purportedly signed by the seller of the property, bore no witnesses and was not notarized. The preliminary plans for the Pasco County project were also delivered to Mr. Ward on March 17, 1983. Mr. Ward informed petitioner's representative that he was not the proper person with whom to file the plans and that the plans had to be filed with the HRS Office of Licensure and Certification in Jacksonville. He informed Ms. Cody that he would wait until the next day, March 18th, to make his decision regarding the extension request and would first call the Jacksonville OLC office to determine if the plans had been filed. Mr. Ward was also delivered a letter dated March 1, 1983 from Raymond, James and Associates, Inc. stating that they would be pleased to act as underwriter for the Pasco County nursing home facility and anticipated no difficulty placing this issue. Mr. Ward advised the petitioner by letter dated March 18, 1983, that its request for a six-month validity extension on its Pasco County Certificate of Need was denied in that good cause for an extension was not found to exist. Petitioner was requested to return the original certificate, which was then null and void. The bases for Mr. Ward's decision were that the Option to Purchase, containing no witnesses and no notarization, was not satisfactory; the commitment regarding financing, containing no terms, conditions or acceptances, was not sufficient and the plans had not been submitted to the OLC in Jacksonville. Petitioner also requested a six-month extension on the Pinellas County Certificate of Need. By letter dated March 1, 1983, again citing site acquisition problems as the reason for the requested extension, petitioner informed respondent that it had now acquired the property and had applied for annexation, zoning and land use plan changes. Petitioner further informed HRS that the meeting with the OLC on its preliminary plans was scheduled for March 29, 1983, and that petitioner would accomplish the submission of final plans by April 6th. Finally, petitioner in formed respondent that it had received an inducement resolution from the City of Safety Harbor for tax exempt bond financing and that its underwriter had assured petitioner that "bond financing will be as smooth as it usually is on our projects." Attached to the letter requesting a six-month extension were copies of the Options to Purchase, effective for a period of sin months. There was no evidence that the options had been exercised by the petitioner. By letter dated March 23, 1953, HRS notified petitioner that its Certificate of Need for the Pinellas County nursing home project had expired on March 22, 1983, and was null and void. Mr. Ward informed petitioner that its extension request was denied for failure to show good cause for the extension. The bases for this decision were that the plans for the Pinellas County project had not been filed with the OLC, that the inducement resolution from the City of Safety Harbor was not considered a firm financing commitment and that the options to purchase containing conditions with regard to annexation by the City and rezoning, did not illustrate a firmly secured site. The respondent's rules require requests for extensions of Certificate of Need validity periods to be submitted along with supporting documentation not later than 15 days prior to the Certificate of Need termination date. The respondent HRS considers this time frame to be met if the letter, with supporting documentation, requesting the extension is dated 15 days prior to the termination date and the Department has notice that an extension is being requested within that time period. While the rule requires documentation of the submission of final construction plans for review by the OLC, it has been the policy of respondent to accept the submission of preliminary plans as meeting the criteria for an extension if the plans were submitted prior to the expiration date of the original Certificate of Need. It is the responsibility of three employees of the respondent's OLC, as well as three or four private consultants under contract with HRS, to review the schematics, preliminary plans and final construction plans for health care facilities. The manner in which this is routinely done is for the applicant to notify the OLC of their readiness for review and then the OLC schedules a meeting between its architects and the applicant's architects and engineers on the first available Monday or Tuesday in Jacksonville. It generally takes about a month to secure a meeting date from the time the request for a meeting is made. Applicants are discouraged by the OLC from sending in their plans prior to the date arranged for the meeting, but instead are encouraged to have their architects and engineers bring the plans to the meeting. The actual review of the plans occurs during the meeting between HRS officials and representatives of the applicant. The review of plans for a nursing home normally takes from three to six hours.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's requests for six-month extensions of its Certificates of Need to construct 120- bed nursing homes in Pasco County and Pinellas County be DENIED, and that said Certificates be declared null and void. Respectfully submitted and entered this 8th day of December, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1983. COPIES FURNISHED: Jean Laramore & Al Clark, Esquires Laramore & Clark 325 N. Calhoun Street Tallahassee, Florida 32301 Claire D. Dryfuss & Jay Adams Assistants General Counsel 1323 Winewood Blvd., Suite 406 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
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
Findings Of Fact Respondent, Jesse Leon Thomas, Jr., was first hired by the School Board of Pinellas County in January of 1974 and before his demotion, had served as a maintenance supervisor, supervising sixty-seven people for between five and five and a half years. In February, 1988, Respondent's driver's license was revoked for a period of five years. The order of revocation provided after one year that he could apply for an essential use driving permit for the purpose of driving in connection with his work. Within the office of the Executive Assistant Superintendent for Institutional Services of the Pinellas County School System, maintenance work is divided into five general sections. These include the Technical Engineering Section, the Capital Improvement Force, the SJO section, the DEIS section, and the Emergency/Service section, of which three are headed by maintenance supervisors. Respondent Thomas, at the time of his demotion, was serving as the maintenance supervisor of the Capital Improvement Force. When demoted as a result of the loss of his driver's license, he was assigned the position of general foreman, under the maintenance supervisor of the Emergency- Service section. Arthur M. Spinney is Director of Maintenance for the Pinellas County Schools and serves directly under the Executive Assistant Superintendent for Institutional Services. According to Mr. Spinney, a maintenance supervisor, supervises primarily trades people (roofers, carpenters, painters, etc.). As maintenance supervisor, Mr. Thomas reported directly to Mr. Spinney. All maintenance supervisors are issued School Board owned motor vehicles to assist in the performance of their duties. The Pinellas County School Board Maintenance Department has a twenty-four hour a day response capability, which requires that one of the several maintenance supervisors within the system be on call during off-duty hours for approximately ten days a month. The on-call maintenance supervisor is expected to insure appropriate repair personnel are dispatched to the scene where needed, and if necessary, to go to the job site himself, in a supervisory capacity. Mr. Spinney expected the maintenance supervisor of the Capital Improvement Force to visit each job site at which an active project was being accomplished by that force at least twice a week. The maintenance supervisor was charged with the responsibility of making separate, unscheduled visits to job sites on an unannounced basis as well. Capital Improvement Force projects are those on which normally more than sixteen man-hours of labor are expended and which generally cost between four and five thousand dollars. Some projects may go considerably higher. The projects are often located at more than one job site, and may be located at any school property throughout the county. More than one job is accomplished at a time. Within the Capital Improvement Force, the maintenance supervisor is assisted by a general foreman, who is assisted by several trades foremen. The maintenance supervisor is not expected to personally check daily on each project being supervised directly by a trades foreman. He has overall responsibility to insure that the general foreman and the trades foremen supervise the workers properly and is expected to make separate and unscheduled visits to the job sites to insure that the progress is appropriate. Mr. Spinney did not take immediate action when Mr. Thomas first advised him of the situation involving the driver's license. However, when presented with proof of the revocation action, effective April 4, 1988, he demoted Mr. Thomas from the position of maintenance supervisor of the Capital Improvement Force, to the position of general foreman of the Emergency Task Force. The Emergency Task Force generally works on projects involving less than sixteen man-hours. Mr. Spinney does not expect Mr. Thomas, in his capacity of general foreman of the Emergency Task Force, to routinely visit job sites because they would normally be completed before he could conduct an inspection. He is required to visit the sites on an as-needed basis and make periodic checks, but can go with the individual trade foreman. Mr. Spinney is prepared to recommend Mr. Thomas for promotion to a maintenance supervisor position as soon as his driving license is restored and a maintenance supervisor position comes open. Mr. Thomas contends that his completion of the routine office jobs while a maintenance supervisor left him only approximately eight hours per week for actual job site visits. Because of his routine office duties, and other duties such as special studies and teaching of training sessions, Mr. Thomas was rarely able to visit the job sites. As a matter of fact, during the five years immediately prior to his demotion, Respondent recalls going to a job site after regular hours on only two occasions and on both of those visits, his presence was not actually necessary. In fact, he has not driven a county vehicle home since July of 1987; Possession of a driver's license is not listed as an essential criteria in the job description for maintenance supervisor. In some other jobs such a requirement is listed in the job description. When in 1979, Mr. Spinney concluded that a driver's license requirement should be included in the job description for maintenance supervisor his efforts to effect that change were disapproved by the school board. As maintenance supervisor, Mr. Thomas dispatched qualified workers to job sites, a function he could fulfill by the use of a telephone or radio. When on call, he could be reached by telephone, mobile radio, or beeper, and when it was necessary for him to go to a job site, he could always travel with the general foreman or a trade foreman, who are in and out of the office, going to and from the various jobs sites on a continuing basis throughout the day. Any meetings he might have to attend as a maintenance supervisor are, almost without exception, conducted in the office where he worked. During the forty days after his driver's license was revoked, and before he was demoted, Mr. Thomas missed no calls requiring his presence due to his inability to drive. The acting maintenance supervisor, filling Mr. Thomas's position since his demotion, indicated he has visited job sites on very few occasions, due to the large amount of paperwork involved in the position. Since he has been serving as general foreman of the Emergency Services Section, Mr. Thomas has made more weekly visits to job sites than when he was maintenance supervisor of the Capital Improvement Force. All visits have been made as a passenger in a vehicle driven by another school board employee. Mr. Thomas's work record during the period of time he has worked with the school system has been outstanding. There is no indication that the demotion was a result of poor duty performance or other instances of misconduct. Mr. Spinney contends that Respondent's driving revocation adversely affected his ability to serve as a leader, and required his demotion from the job of maintenance supervisor, but he has been satisfied with the Respondent's leadership as a general foreman. Mr. David Jackman, in charge of the maintenance section's accounting department, has been twice convicted of driving while intoxicated. Even after his convictions, he was placed into that position and no disciplinary action was taken against him. This is explained by the fact that Mr. Jackman's job requires few visits outside the office. He can get to any meetings he is required to attend by riding with Mr. Spinney or someone else from the office. He was warned, however, after his second offense, that his conduct could affect his job. While no formal requirement exists in the job description of a maintenance supervisor that the incumbent possess a valid driver's license, the job requires that the incumbent visit the work sites on both a periodic and an unannounced basis. It would be difficult, if not impossible, to insure that visits were unannounced if the supervisor were required to rely on other employees for his transportation to the work site. Consequently, the incumbent must have the means of independent travel to effectively accomplish the requirements of the position.
Recommendation It is, therefore recommended that the demotion of Mr. Thomas to the position of general foreman, be sustained. Recommended in Tallahassee this 21st day of July, l98, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2094 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 6. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 11 - 12. Accepted and incorporated herein. 13 - 15. Accepted and incorporated herein. 16 - 17. Accepted and incorporated herein. 18 - 20. Accepted and incorporated herein. By the Respondent: 1 - 2. Accepted and incorporated herein. Accepted and incorporate herein. Accepted and incorporated herein. Accepted. Accepted, but not complete in intent. 7 - 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misleading statement. 12 - 13. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 21 - 22. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not supported by evidence of record. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618 Louis Kwall, Esquire 133 North Ft. Harrison Avenue Clearwater, Florida 34615
