The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of May, 2009.
The Issue The issue for determination is whether Respondent committed the violations as alleged and, if so, what civil penalty is appropriate.
Findings Of Fact Respondent, T. Cayton Enterprises, Inc. is the owner and operator of Four Oaks Mobile Home Village, a mobile home park located in Titusville, Brevard County, Florida. On or around June 27, 1986, Thomas Cayton, as President of T. Cayton Enterprises, Inc. filed a prospectus for the park with Petitioner, Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes. The filing statement provided that 49 lots would be offered for rent, and that none of the lots were occupied. The $10.00 per lot filing fee ($490.00) was paid. The filing was rejected as the form was deficient. Between the end of June 1986, and August 26, 1987, the date of the approval letter, eight versions of the prospectus were filed by the park owner and were reviewed by staff of the division. After each review, the owner was sent a letter outlining the deficiencies. At one point, sometime around June 1987, Mr. and Mrs. Cayton travelled to Tallahassee to meet with Selena Einwechter, the Supervisor of the Examination Section in the agency's Bureau of Mobile Homes. The prospectus submittals and correspondence to and from the Bureau comprise 425 pages. Between the filing of the first version of the prospectus and the final approval, approximately 14 months later, twelve lots were rented at Four Oaks Mobile Home Village. The lot numbers and dates of the rentals are: Lot #3 August 1, 1986 Lot #2 August 2, 1986 Lot #44 August 15, 1986 Lot #46 August 30, 1986 Lot #12 November 1, 1986 Lot #4 November 30, 1986 Lot #19 January 15, 1987 Lot #7 March 9, 1987 Lot #6 June 1, 1987 Lot #15 June 1, 1987 Lot #5 June 6, 1987 Lot #9 June 30, 1987 Six of the recitals are evidenced by written leases; the remainder were oral agreements, reflected in the office records of the park. All of the tenants commenced paying rent upon occupancy of the lot and no one was told that the leases were unenforceable. At the beginning of the process, on July 29, 1986, Thomas Cayton was sent a letter from the Bureau of Mobile Homes confirming that his prospectus filing had been received and was being examined. The bottom of the letter includes this statement, clearly displayed: NOTE: Section 723.011, Florida Statutes, and Rule 7D-31.01, Florida Administrative Code, requires the delivery of a prospectus which has been deemed adequate by the Division prior to entering into enforceable rental agreements or renewal of existing rental agreements. Renewals of existing rental agreements or entering into new rental agreements without delivery of a prospectus which has been deemed adequate will constitute a violation of the Florida Mobile Home Act. (Petitioner's Exhibit #1, composite) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. Subsection 723.005(d)1., F.S. authorizes the Division of Florida Land Sales, Condominiums and Mobile Homes to impose a civil penalty not to exceed five thousand dollars ($5,000) against a mobile home park owner for each separate violation of Chapter 723, F.S. or regulation promulgated pursuant thereto. The statute and rule allegedly violated by Respondent provides as follows: 723.011 Disclosure prior to rental of a mobile home lot; prospectus, filing, approval.-- (1)(a) In a mobile home park containing 26 or more lots, the park owner shall file a prospectus with the diversion. Prior to entering into an enforceable rental agreement for a mobile home lot, the park owner shall deliver to the home owner a prospectus approved by the division. This subsection shall not be construed to invalidate those lot rental agreements for which an approved prospectus was required to be delivered and which was delivered on or before July 1, 1986, if the mobile home park owner had: Filed a prospectus with the division prior to entering into the lot rental agreement; Made a good faith effort to correct deficiencies cited by the division by responding within the time limit set by the division, if one was set; and Delivered the approved prospectus to the mobile home owner within 45 days of approval by the division. This paragraph shall not preclude the finding that a lot rental agreement is invalid on other grounds and shall not be construed to limit any rights of a mobile home-owner from seeking any remedies allowed by this chapter, including a determination that the lot rental agreement or any part thereof is unreasonable or unconscionable. (emphasis added) * * * 7D-31.001 Prospectus and Rental Agreement. * * * (13) The park owner shall deliver the prospectus to existing tenants prior to the renewal of their rental agreements or prior to entering into a new rental agreement. Once a tenant has been given a prospectus, the park owner shall not be required to provide another prospectus but shall provide amendments, as described in Rule 7D-30.004 and this rule. Because Four Oaks' prospectus was not approved until the end of August 1987, the 12 rental agreements entered between August 1, 1986 and June 30, 1987, violated the above provisions. Respondent claims that he thought that as long as the prospectus had been filed, he could enter into rental agreements. This would have been true under the original version of the Florida Mobile Home Act, passed by the Legislature in 1984. The relevant provision of that act is found in Section 720.302(1), F.S. (1984) as follows: Every mobile home park owner of a park which contains 26 or more lots shall file a prospectus or offering circular with the division prior to entering into an enforceable rental agreement. Chapter 84-80, Laws of Florida, Part III) This section took effect on January 1, 1985, for parks with more than 100 lots, and on July 1, 1985 for parks with less than 100 lots. (Chapter 84-80, Laws of Florida) The current version, reflected in Section 723.011, F.S., cited above, took effect on July 1, 1986. (Chapter 86-162, Laws of Florida) Respondent cannot avail himself of the "grand-father" provision of Section 723.011, since his rental agreements and prospectus approval occurred after July 1st. Further, the explicit language of the note on the July 29, 1986, letter should have put him on notice of the new requirements of the law. There are no guidelines for the imposition of a penalty, other than the $5,000.00 maximum per violation found in Section 723.006(5)(d)1. F.S. No evidence was presented as to prior violations by this Respondent. The extensive file evidences a good faith attempt to comply with a law that was still relatively new.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Respondent be found guilty of violation of Section 723.011(1)(a), F.S. (1986), as charged, and that a civil penalty of $100.00 per violation be imposed, for a total of $1,200.00. DONE and RECOMMENDED this 13th day of September, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988. COPIES FURNISHED: Richard Coates, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas Cayton, Registered Agent 2475 Cheney Highway Titusville, Florida 3270 Debra Roberts, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Thomas A. Bell, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Petitioner, The Mills Development Group of Florida, Inc., owns a condominium project now under construction at 1660 Gulf Boulevard, Clearwater, Florida. The project is on the south end of Sand Key, a thin finger-like strip of land which runs in a north-south direction between the Gulf of Mexico and Clearwater Harbor. Gulf Boulevard is the principal road traversing the Key. The condominium project is situated on the west side of Gulf Boulevard and fronts the Gulf of Mexico. Petitioner proposes to construct a marina on the east side of Gulf Boulevard which fronts Clearwater Harbor. It will be used by the condominium residents and their guests. If the application is approved, Petitioner will construct a 683' x 6' boardwalk next to the seawall, which extends along the waterline on Clearwater Harbor. Extending outward from the boardwalk no more than 30 feet will be 20 catwalks providing slips for approximately 40 boats. Petitioner desires to build a boardwalk to have access to the deeper water which lies outward from the seawall and to avoid dredging activities. The boardwalk will also provide greater safety for the boaters. The proposed project lies within an area currently zoned by the City as District RM-28 (High Density Multi-Family Use District). This District was created to provide for high density apartment and condominium development use. Permitted uses and structures within the District include apartment houses, townhouse developments and accessory buildings, including recreational buildings and/or community meeting buildings. A number of special exceptions are authorized within a RM-28 District. These include, inter alia, a Type A Marina facility for pleasure craft docking. Accordingly, if the application is approved, the use will be consistent with the Land Use Plan and Zoning Ordinance. The City expressed concern that persons using the facilities may wish to park on the grassy strip which lies between Gulf Boulevard and the proposed marina which in turn will impede the traffic flow on the thoroughfare. However, adequate parking for guests and residents will be located at the condominium across the street. Further, no material change in the amount of traffic is expected to be generated by the facility. Moreover, City approval is required if Petitioner desires to provide improved parking facilities on the grassy strip in the future. Intervenor/Respondent, isle of Sand Key Condominium Association, is a condominium association located to the east of Petitioner and approximately 150 feet across the channel at the proposed marina's northern end. The Association does not object to the project itself but is concerned only with the proposed length of the boardwalk. The Association has its own marina facilities which run perpendicular with the waterway and Sand Key. If approved, the proposed boardwalk would lie directly across the waterway from the Association's facilities leaving insufficient space in the channel for expansion of its marina. The Association also contends the proposed marina, if constructed in its present design, will violate an Easement Agreement entered into in November, 1975, by the prior owner of Petitioner's property and the Association. However, this concern is beyond the scope of this proceeding.
Findings Of Fact James R. Gray owns Lots 10, 11, 12 and 13, Clearwater Beach Park, as recorded in Plat Book 10, p. 42, of the official Records of Pinellas County. These lots are located on Clearwater Beach in an area zoned CTF-28. For the past several years beach chairs, umbrellas and cabanas have been rented for use in the vicinity of these lots and a portable 4' x 8' building standing on these lots has been used to store the chairs, umbrellas and cabanas when not rented. Gray proposes to replace the 4' x 8' building with an 8' x 10' portable aluminum shed from which to operate the business of renting beach equipment and expand it to include the sale of suntan lotion, soft drinks, and related items. The business will be operated by Roy Pearl, a co-applicant with Gray in these proceedings. Gray and Pearl applied for a building permit to erect the portable shed and their application was rejected by the City of Clearwater Building Department on the basis that the proposed use of the property was not in conformity with the Building and Zoning Regulations and did not fit the special exceptions provided by Section 131.099 of the Zoning Regulations. The latter determination was made by the Clearwater Planning Department. Gray then submitted on a City of Clearwater form an Application-- Request for Special Exception to the Clearwater Board of Adjustment and Appeal on Zoning, which, as noted above, approved the application. The area in question comprises a private beach; and businesses in the vicinity consist of motels, hotels, apartments and restaurants. An 8-unit motel occupies part of the site involved. The location of the proposed portable aluminum shed is on Lots 12 and 13, approximately 150 feet seaward of the seawall which separates the beach from the business establishment seaward of Gulf View Boulevard. Approximately 150 feet south of this proposed location is a similar storage shed operated in conjunction with a sailboat rental business. Some of the hotels and motels on Clearwater Beach rent umbrellas, chairs and cabanas, some of which are stored when not in use in storage sheds located more than 100 feet from the main building. On the public beach the City of Clearwater operates a concession which provides the same services proposed by applicant. The chairs, umbrellas, and cabanas are utilized by guests of the motels and apartments located in the vicinity and by tourists who are using this area of the beach for sunbathing or swimming.
The Issue Whether Respondents, Wayne Jones, manager (Mr. Jones), and Sun Key Village (Sun Key), are entitled to an award of attorney's fees and costs pursuant to sections 57.105(5) and 120.595, Florida Statutes (2010),1/ and ,if entitled to an award, then the determination of a reasonable amount.
Findings Of Fact The Beaulieus are residents of Sun Key, a mobile home park located at 8607 26th Avenue, East, Palmetto, Florida. Mr. Jones is the manager of Sun Key. Sun Key is a mobile home park as defined by section 723.003(6), Florida Statutes. On March 25, 2010, the Beaulieus filed a Petition for Relief with the Commission stating: I still feel this is discrimination-- Mr. Jones states I am violating park rules by having a dog over 20 lbs this dog is a Visitor not a resident pet. It is my sons' dog--visits on occasion. There are many dogs over 20lbs & living in Sun Key. This is selective enforcement!!! Ms. Beaulieu attached to her Petition for Relief a lengthy hand-written document, alleging that other residents were violating Sun Key park rules concerning the size and number of permissible dogs. On March 30, 2010, the Commission forwarded the Beaulieus' petition to DOAH. An Initial Order was issued, requiring the parties to respond concerning, in part, the amount of time required for the hearing and the date and location for the hearing. On April 6, 2010, Carol S. Grondzik, Esquire (Ms. Grondzik), of Lutz, Bobo, Telfair, Eastman, Gabel & Lee, filed a response for Respondents. On April 8, 2010, the Beaulieus, acting as their own attorneys, filed a response. Based on the responses, the Administrative Law Judge set the case for final hearing on August 3, 2010. On April 12, 2010, Respondents filed a Motion to Dismiss. In the Motion to Dismiss, Respondents argued that the Beaulieus "have not alleged they are members of a protected class under fair housing law." Further, the motion referenced Ms. Beaulieu's letter dated March 8, 2010, requesting an appeal of the Commission's no cause determination. Specifically, the Motion to Dismiss stated that the Beaulieus' complaint was for "selective enforcement" and not tied to retaliation based on the prior housing complaint filed by Ms. Beaulieu's sister. Thus, the Motion to Dismiss concluded that: [B]ecause Petitioners do not assert that they are members of a protected class under fair housing law, because they do not pursue a claim of retaliation against Respondents Wayne Jones and Sun Key, and because Bert Blanchard and the Sun Key Village Homeowners Association, Inc., are not providers of housing subject to fair housing laws, this Petition should be dismissed as a matter of law. On April 12, 2010, Ms. Grondzik served, by U.S. mail, a copy of the Motion for Attorney's Fees and Costs, pursuant to section 57.105, with a letter to the Beaulieus. Specifically, Ms. Grondzik's letter states: A Motion for Attorney's Fees and Costs is also enclosed for your review. I will hold this motion for at least 21 days before filing with the Division as required by Florida law. This allows you time to analyze the relevant facts and law, to seek advice as necessary, and to take action. On April 19, 2010, DOAH issued a Notice of Ex-parte Communication after it had received a copy of a letter that had been sent by Kenneth Wiggins (Mr. Wiggins), an attorney for the Beaulieus, to Ms. Grondzik. The terms of the letter sought to settle the dispute between the Beaulieus and Respondents. Mr. Wiggins, however, did not make an appearance for the Beaulieus before DOAH, and it was unclear who mailed the letter to DOAH. In any event, the Beaulieus continued to represent themselves in the proceedings before DOAH. On July 7, 2010, the Beaulieus filed a motion for continuance of the August 3, 2010, hearing date. The Administrative Law Judge denied the motion. On July 19, 2010, the Beaulieus filed a Notice of Voluntary Dismissal of their petition. On July 21, 2010, Respondents filed the Motion for Attorney's Fees and Costs and Notice of Filing Affidavit of Carol S. Grondzik. Ms. Grondzik's affidavit set out the hourly rate and the scope of work performed to date in the case. On July 29, 2010, Respondents filed a Memorandum of Law in Support of Respondent's [sic] Motion for Attorney's Fees and Costs. At the January 14, 2011, hearing, Ms. Beaulieu testified about instances where the mobile home park failed to enforce its rules and regulations concerning the pet size for residents. Further, she testified that she had brought the DOAH proceeding to address the unfair and selective enforcement of the mobile home park's rules. Sun Key Village Mobile Home Park, Park Rules and Regulations provides, in pertinent part, that: 9. Pets: A maximum of two small pets are permitted, which at maturity must not weigh greater than 20 pounds each. Pets must be confined to the interior of the home when the resident is not present and must be on a leash at all times when outside of tenant's home. They must be transported to areas outside of residence or common areas for exercise. The record shows that the Beaulieus were provided a copy of the rule when moving into Sun Key. Mr. Wayne Jones testified that there were instances when exceptions had been made for residents to have dogs larger than 20 pounds. For example, he identified that residents, who had large, elderly dogs when they moved into Sun Key, were allowed to keep their pets. Mr. Peterson, an attorney who has extensive experience in representing mobile home park owners, testified concerning the reasonableness of the attorney's fees and costs. Mr. Peterson testified that he considered the factors outlined in Florida's Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and reviewed the legal file in this case. Based on his review, Mr. Peterson found that 57.2 hours were reasonable in defense of this case and that the blended hourly rate of $235.92 was reasonable. Therefore, Mr. Peterson testified the reasonable attorney's fees to be $13,494.40 and the amount of taxable costs to be $575.00. Mr. Peterson also testified that Respondents would be entitled to attorney's fees for having to litigate the issue of fee entitlement. Mr. Peterson testified that 14 hours would not be an unreasonable amount of time for preparing and attending a hearing concerning the entitlement to fees, for a total of $3,302.88 using the blended hourly rate of $235.92. Based on a review of the record and testimony offered at trial, 71.2 hours is a reasonable amount of time spent on the defense of the instant case and litigating the issue of entitlement to attorney's fees. A review of the record and testimony shows that $235.92 an hour is a reasonable prevailing blended hourly rate. The parties stipulated that the Beaulieus are not members of a protected class under the fair housing law.
The Issue Whether Respondent should be granted licenses to operate two residential group homes for developmentally disabled individuals.
Findings Of Fact On October 22, 1999, the Department issued to Community Opportunities, Inc., a temporary license to operate Skyline ("Skyline" or "Skyline Group Home"), a residential group home for developmentally disabled clients in Pasco County, Florida, which is located in the Department's Suncoast Region. Four months later, in February 2000, the Department issued a standard license to Community Opportunities, Inc. From February 2000 through early August 2002, Skyline Group Home operated under that standard license. In May 2002, the Department investigated an abuse complaint concerning a 21-year-old male resident at the Skyline Group Home who was diagnosed as mentally retarded with Intermittent Explosive Disorder. His past history included incarceration for attempting to stab his father and, while at Skyline, 14 behavior incidents ranging from exposing himself to violent behavior towards staff and other residents at the group home. On or about May 3, 2000, this resident, while a passenger in a van for the group home, took the vehicle's keys from the seat where they were left by a staff person, started the van, ran over the staff person twice, and ran the van into a house and a telephone pole, before being stopped. Following the Department's investigation, the report was classified as verified for inadequate supervision, caretaker present. The investigation referred to in paragraph 2 also found that the Skyline Group Home was inadequately staffed, with employees working for weeks at a time with no days off. At the time of the investigation, the van driver, who was injured in the incident, described in paragraph 2 had not had a day off for almost two months prior to that incident. On August 4, 2000, the Department met with representatives of Community Opportunities, Inc., due to safety issues with the operation of the group home. Following this meeting, on or about August 11, 2000, Skyline's licensure status was changed from standard to conditional. At that time, the Department requested that the facility submit plans of corrective action. On August 28, 2000, the Department investigated an abuse complaint concerning a mentally retarded, female resident of the Skyline Group Home. This resident was found walking on a gravel road with no shoes and dressed only in a nightgown. It was estimated that it would have taken 8 to 10 minutes to walk to the location where the resident was found. This elopement from the group home occurred 3 times in a three-hour period. As a result of the investigation, it was also learned that Skyline Group Home staff members were dropping off residents at school before teachers arrived, thereby leaving the developmentally disabled clients unattended. In addition, the investigation revealed that staff at the Skyline Group Home could not be reached during the day when emergencies or problems with medications arose, staff members failed to document significant events as required, and faxed requests for medication from the school to the group home went unanswered. This report was classified as verified for inadequate supervision and medical neglect. The investigation found systemic problems associated with the group home. Although the Department gave Community Opportunities, Inc., time to correct the problems, the problems were never corrected. As a result of those failed attempts, the Department closed the Skyline Group Home on September 30, 2000. On September 21, 2000, the Department sent a letter to Ernie M. Beal, Jr., Executive Director of Community Opportunities, Inc., notifying him that the license for the Skyline Group Home would not be renewed. Community Opportunities, Inc., did not challenge the Department's proposed action and two months later, the Department issued a Final Order affirming the denial of Community Opportunities, Inc.'s, relicensure. The reasons for nonrenewal of Skyline's license included the facility's failure to maintain adequate staff at the group home; failure to take reasonable precautions to assure that the residents were not harming themselves or others; incidents involving injury to staff; inadequate corrective action plans to address deficiencies; and numerous violations of the licensure standards under Rule Chapter 65B-6, Florida Administrative Code. On or about September 12, 2002, the Department received licensure applications for two developmentally group homes, Skyline Group Home in Dade City, Florida, and Harvill Group Home located in Lithia, Florida, both of which were located in the Department's Suncoast Region. The applications were submitted by Your Friends & Neighbors of Florida, Inc., and signed by Pamela Beal, Chief Executive Officer ("CEO"). Ernest Beal, Jr., Chief Operating Officer, was listed on both of the applications as the person who would operate and supervise the facilities. Your Friends & Neighbors of Florida, Inc. is a non- profit corporation. Ernest M. Beal, Jr., is its president and Pamela Beal is its vice-president, secretary, treasurer, and CEO. The Board of Directors of Your Friends & Neighbors of Florida, Inc., is comprised of Pamela Beal and Ernest Beal, Jr., and Felicity Lennox, who was also on the Board of Directors of Communities Opportunities, Inc. Ernest M. Beal, Jr., is the president and CEO of PEJUS, Inc., which on January 1, 2000, purchased the assets of Community Opportunities, Inc. PEJUS, Inc., then conveyed its interest in the former Community Opportunities, Inc. to Your Friends & Neighbors, Inc. Qualification documents for Your Friends & Neighbors of Florida, Inc., were filed with the Secretary of State on or about January 29, 2001, and the corporation was authorized to transact business in Florida on that date. Petitioner's, Your Friends & Neighbors of Florida, Inc.'s, corporate office is at the same address as Community Opportunities, Inc., located at 1515 Magnavox Way, Fort Wayne, Indiana. Moreover, when calling Your Friends & Neighbors of Florida, Inc.'s phone number, one is greeted by a recorded message which states the names Your Friends & Neighbors, Inc., Community Opportunities. Inc., and PEJUS, Inc. Your Friends & Neighbors, Inc., is an Indiana corporation founded in 1985 by Ethyl Beal and Pamela Beal. Community Opportunities, Inc., is an Indiana corporation owned by Ernest Beal, Jr., which owned the Skyline Group Home in September 2000, when the license for Skyline was not renewed. The two applications for licensure submitted by Your Friends & Neighbors of Florida, Inc., on September 12, 2002, were almost identical to the application for the Skyline Group Home submitted by Community Opportunities, Inc., in July 1999. There were no significant differences in the 1999 application and the 2002 applications. In fact, the services to be provided, the program description, and the staffing pattern were almost identical. Notwithstanding these similarities, the applications submitted in 2002, proposed to serve clients with developmental disabilities more severe than those served at Skyline Group Home pursuant to the 1999 application. By letter dated October 2, 2002, the Department notified Pamela Beal, CEO of Your Friends & Neighbors of Florida, Inc., that the licensure applications had been denied. The notice cited all the reasons the Department did not renew Skyline's license in September 2000. Those reasons included the incident involving the vehicle resulting in injury to staff; neglect of the residents; failure to correct problems through corrective action plans; insufficient staffing ratio; lack of reasonable precautions to ensure residents' safety; failure to ensure timely medical treatment to residents; and failure to properly report injuries. Despite the violations cited in the notice of denial, at the final hearing, the Department clarified that its concern with the subject applications was not with the direct care staff, but with the fact that the proposed model would not meet the needs of the clients with developmental disabilities that Petitioner wanted to serve.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a Final Order confirming the decision not to issue Petitioner's group home licenses for Skyline and Harvill. DONE AND ENTERED this 30th day of April, 2003, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 30th day of April, 2003. COPIES FURNISHED: Pamela J. Beal 1515 Magnavox Way Fort Wayne, Indiana 46804 Ernie Beal, President Your Friends & Neighbors of Florida, Inc. 4505 Club House Drive Marietta, Georgia 30066 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 314 Largo, Florida 33778-1630 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2019.
The Issue Whether Petitioner Hospice of Palm Beach County, Inc. (Hospice) is entitled to a certificate of need (CON) from the Department of Health and Rehabilitative Services, Respondent, (HRS) in CON Action No. 3702 for a home health agency in Palm Beach County and the District IX service area?
Findings Of Fact Hospice provides special interdisciplinary services, including medical, psychological, spiritual, counseling and volunteer services, for persons in the terminal stages of illness. Hospice is licensed by HRS as a hospice under Chapter 400, Part V, Florida Statutes. Hospice has been qualified by the United States Health Care Financing Administration for participation in the Medicare hospice program. See Part 418, 42 Code of Federal Regulations. Hospice was the first hospice program in Florida to be accredited by the Joint Commission on the Accreditation of Hospitals (JCAH) as a hospice. JCAH accreditation includes approval of the home care component of Hospice's service. HRS has approved issuance of a certificate of need (CON No. 3693) for the establishment by Hospice of its own 24-bed freestanding inpatient facility. Hospice's inpatient facility will be the first free- standing hospice facility in Florida. Hospice's present service area is within Palm Beach County. Hospice's service area reaches from the southern border of Boynton Beach in Palm Beach County north to the Martin County line. Hospice's service area also extends west within the County to include service to Belle Glade, a multi-ethnic rural community. Approximately 25 percent of Hospice's patients are medically indigent, with little or no ability to pay for care. Over 28 percent of Hospice's patients in fiscal 1985 were members of ethnic minorities. Hospice was one of five applicants in its "batching" cycle seeking a certificate of need to establish a home health agency within local health District IX. The others were Palm Beach Gardens Home Health Agency (CON #3699), MEA (CON #3700), Coastal Health Corporation (CON #3701) and Medical Personnel Pool of Treasure Coast, Inc. (CON #3706). (A sixth applicant, Medical Personnel Pool of Palm Beach, Inc., CON #3698, was granted a certificate in an earlier cycle and not considered by HRS in this batch.) By letter dated June 14, 1985, HRS indicated that it had determined to deny Hospice a certificate of need to establish a home health agency in Palm Beach County. Hospice's substantial interests are affected by HRS' determination of denial. Section 400.601(3), Florida Statutes (1985), requires Hospice to provide care to terminally ill patients regardless of ability to pay, and to make such care available 24 hours a day, 7 days a week. Unless Hospice receives a certificate of need to establish a home health agency, it is ineligible for licensing by HRS under Chapter 400, Part III, as a home health agency and corresponding certification as a Medicare home health service provider. See § 400.462(2), Fla. Stat. (1985). Without a certificate of need for home health care, Hospice's financial ability to serve its hospice patients is not as great as it might be if it held such a CON. Without certification as a home health agency, Hospice cannot presently collect any reimbursement for home health care of medically indigent Medicaid patients. Hospice often experiences difficulty in collecting even private insurance payments for home health care of patients with such insurance. Hospice will suffer injury in fact as a result of HRS' determination and its interests are among those regulated by this action. Hospice filed a timely petition for a Section 120.57 administrative proceeding concerning HRS' decision on CON Action 3702. Prior to the decision in Department of Health and Rehabilitative Services v. Johnson and Johnson Home Health Care, 447 So.2d 361 (Fla. 1st DCA 1984), HRS followed a rule generally precluding the issuance of a certificate of need for a new home health agency until the average daily census of each existing home health agency within the same service area had reached 300 patients. This rule was known as the "Rule of 300." In Johnson and Johnson, supra, the First District Court of Appeal struck the "Rule of 300" as arbitrary and inconsistent with Section 381.494(6)(c), Florida Statutes, which lists numerous criteria for evaluation of CON applications. In particular, the Court noted, the "Rule of 300" did not allow new agencies "where existing agencies are able but unwilling to provide services of a particular type or for a particular class of patients." 447 So.2d at 362. After the "Rule of 300" was struck, a statewide task force was created to develop new criteria to evaluate CON applications for new home health agencies. The statewide association of hospices, Florida Hospices, Inc., attempted to participate in the development of new criteria, but did not participate in this process. On April 5, 1985, HRS proposed new rule criteria for home health agency evaluations, which were the subject of a proposed rule challenge in September 1985 before the Division of Administrative Hearings. This proposed rule was struck down as invalid on March 12, 1986. These new criteria were proposed for use in addition to other relevant statutory and applicable rule criteria." In acting on the five CON applications in Hospice's "batch," HRS applied its invalidated proposed rule criteria and determined that within District IX as a whole (which includes Indian River, Martin, Okeechobee, St. Lucie and Palm Beach Counties), no new home health agencies were needed. However, in its analysis of the five applications in this batching cycle, HRS also stated that the District IX Local Health Council had indicated that Palm Beach County should be considered a separate subdistrict for home health agency evaluation. Although it found no need for new home health agencies in District IX as a whole in its analysis of this batching cycle, HRS, using its own newly proposed rules, found an existing need for two new home health agencies in Palm Beach County. HRS stated in its June 14, 1985, letter that Hospice's application was denied for the following reason: Use of the methodology developed by the special statewide work group to determine the need for home health agencies in District IX shows no numeric need for additional agencies in this district. HRS has determined for purposes of this proceeding that the following need exists in District IX for home health agencies, indicating a net need of five new agencies in District IX and a net need in Palm Beach County for five new agencies: Application Submittal Date: 12/84 Planning Horizon: 7/86 District 9 1986 (July) population: 65+ = 257,346 District 9 1986 (July) population: <65 = 809,845 1. 257,346 x .0578 = 14,875 Projected use for 65+ population 2. 809,845 x .00058 = 470 Projected use for <65 population 3. (14,875 + 470) x 33.3 = 510,989 Projected visits 7/86 4. 9,000 + (510,989 x 270) - 24,330 5. 410,989 9,000 ? 21,000 = 24 Agencies needed in District 9 for 7/86 24 Agencies - 19 licensed and approved = 5 Agencies needed in District 9 Subdistrict Allocation: Need: Indian River Projected 2 Existing 1 Net 1 Martin 2 2 0 Okeechobee 0 1 (1) Palm Beach 18 13 5 St. Lucie 2 2 0 This need is related solely to the planning horizon of July 1, 1986 established by HRS for Hospice's CON batch and other home health applications filed before the end of 1984. This need is not related to the later planning horizons applicable to District IX home health agency CON applications filed after 1984. Therefore, applicants in batches following Hospice's, which was the last batch submitted in 1984, are not substantially affected by this determination of need. For the purposes of this hearing, there are only two (2) denials by HRS of certificates of need for home health agencies in District IX and proposing service in Palm Beach County in CON batches prior to Hospice's (Joseph Morse Geriatric Center, CON Action No. 3621; A Professional Nurse, CON Action No. 3492) that have been challenged in administrative proceedings and are still pending without Final Order in those proceedings. Thus, Hospice's CON application as a home health agency is, in the worst case, third in line for licensure as a home health agency in District IX, without regard to the special circumstances of Hospice's case and assuming these denials by HRS are reversed in final agency action. Since there is a need for more than 3 new home health agencies in District IX and Palm Beach County based on the planning horizon applicable to Hospice's batch and no other valid request is pending in Hospice's batch, there is a numeric need for granting a CON to Hospice as a home health agency. There is a special need for access within Hospice's actual service area in Palm Beach County to home health services for the terminally ill, which services are provided by a hospice as opposed to existing or other proposed traditional home health agencies. There is additional need for access by the medically indigent to home health services within Hospice's service area in Palm Beach County, and within Palm Beach County in general. The 1985 District IX Hospice Services Plan provides that hospices generally should be licensed as a special type of home health agency. Of all pending applicants in this and the immediately prior batching cycles since 1984 seeking a certificate of need to provide home health services in Palm Beach County, Hospice is committed to providing the greatest percentage of its services for Medicaid and other medically indigent patients, in accordance with the State Health Plan. Hospice, due to its existing and proposed provision of home health services to the medically indigent, its service in Belle Glade, and its service to AIDS patients, as well as its services to the elderly, serves the need for care of low-income persons, medically underserved groups and the elderly. Hospice can provide higher quality of home health care to the terminally ill in its service area than any other existing home health provider or current applicant for a certificate of need to provide home health services in Palm Beach County. Hospice offers a new type of home health service within its service area for terminally ill patients and their families, including a special pediatric program for children with irreversible diseases. This type of service is an alternative to inpatient care, nursing home and traditional home health services. The applicant home health agencies affiliated with hospitals in District IX in Hospice's batching cycle have not shown that they can achieve greater economies or improvements of service than Hospice. Hospice provides the following research and health educational facilities: a) rotational internships for fourth- year medical students at the University of Miami Medical School; training for R. N. candidates at Florida Atlantic University; research support service to the Tropical Disease Center and Palm Beach County Public Health Department through Hospice's care for AIDS patients in the Belle Glade area; d) training for graduate students in psychology at Florida Atlantic University; e) training for seminary students at St. Vincent's Seminary in Boynton Beach; f) training for candidates for master's degrees in social work from Florida State University; and g) designation as second research and training site by the International Hospice Institute, an international research and professional education accrediting institution. No other home health agency in Palm Beach County provides or has proposed to provide the research or educational facilities referenced in the preceding paragraph. Hospice proposes to control its home health agency rather than to allow the home health agency to control its hospice functions. Hospice will have a positive effect on the clinical needs of health professional training in hospice care and related services in District IX and will make such training available to health professional schools. Hospice's proposal, which is based on a conservative growth projection of its historical patient service care needs, demonstrates the immediate and long-term financial feasibility of Hospice's non-profit project goals. Hospice's provision of home health services under a certificate of need will have a positive effect on the costs of and charges for home health services for the terminally ill and their families. Due to its inpatient hospital capability, Hospice is a regional resource and teaching center for the care of the terminally ill. Hospice has a positive impact on competition among providers of care to the terminally ill. Hospice has a positive impact on promotion of quality assurance due to its accreditation by the Joint Commission on Accreditation of Hospitals. No other home health agency in District IX is accredited by that national joint commission for provision of home health services. According to HRS' own determination, the District IX health plan calls for evaluation of home health services needs within the subdistrict of Palm Beach County. Under HRS' determination, that county subdistrict needs five additional home health agencies without regard to the special needs of the terminally ill. In addition, the 1985 District IX plan for hospice health services provides that hospices should be licensed as special home health agencies. Nothing in the 1985 District IX Health Plan suggests that "surplus" home health agencies in other District IX counties can provide access to service needed by the terminally ill and their families within Palm Beach County. According to HRS' determination, the provision of the State Health Plan addressing home health services deals with access of Medicaid and medically indigent patients to home health services. Hospice's proposal meets this goal of the State Health Plan because Hospice will provide 25% of its care to the medically indigent, even if Medicare reimbursement is available as a result of CON approval and home health agency licensure. On a percentage basis, Hospice proposes to provide 3 times more home health care services to the medically indigent than any other District IX applicant in its batching cycle and even a greater incidence than any District IX home health agency applicant in the immediately preceding batching cycle. Hospice's proposal also satisfies other goals and priorities of the State Health Plan not considered by HRS, including but not limited to the continued fostering of the hospice care alternative, potential increased provider participation in the Medicaid home health services program, and creation of funding mechanisms for hospice care of the medically indigent. Hospice is the only hospice program located within Palm Beach County providing and proposing to provide home health care to terminally ill patients and their families in its service area. Hospice can provide a higher quality of home care for the terminally ill than any other existing home health care provider in Palm Beach County due to its accreditation by JCAH and qualification for the Medicare hospice program including home health services. Hospice's home health care, due to provision of additional hospice services, and continuity of home health personnel serving each patient and patient family, is also more appropriate for the terminally ill than other traditional home health services. Hospice's on-call home health personnel must, by Hospice policy, reside no farther than 30 minutes from patients to be served on a round-the-clock basis. The 1985 District IX Health Plan endorses the 30-minute travel maximum for provision of hospice care at home. Even prior to Hospice's provision of service in Belle Glade, nearly one-third of Hospice's patients were members of ethnic minorities. The Belle Glade area served by Hospice is populated by ethnic minorities in need of home health care service. Hospice's development of a special program to serve AIDS patients in Belle Glade and throughout Palm Beach County will make needed home health care available to this underserved group. Other home health agencies recognize the special type of home health care provided by Hospice through their referrals to it. The existence of the Gold Coast Home Health Agency serving Broward County was the basis for HRS' determination that of all five applicants, only Hospice did not meet the criterion in Section 381.494(6)(c)6, Florida Statutes, evaluating the need for special services in adjoining areas. Both traditional and hospice-based home health agencies exist in adjoining District IX areas. Hospice has at present a paid staff of 33 and approximately 270 volunteers. As shown in its financial statements submitted with its application, Hospice has a broad base of community support sufficient to achieve its goals with the aid of the Medicare reimbursement mechanism. Since home health care is a vital component of hospice care, the operation of a home health agency by a hospice is both logically and philosophically a natural outgrowth of the developing hospice movement in the United States. Hospice has excellent prospects for the immediate and long-term financial feasibility of its project, especially if the regular Medicare reimbursement mechanism is made available. Hospice served more than 565 patients in fiscal 1985 and currently serves approximately 110-20 patients per month. Its estimated patient census used to calculate its 1985 and 1986 operating income and expenses in its CON application, therefore, is based on historical data and is conservative. Since Hospice has received approval for the first free- standing inpatient facility for the terminally ill in Florida, it will serve as a regional resource and training center for care of complex cases. Hospice, unlike any other applicant, will offer services complementary to home health care not available in adjacent service districts. Hospice's market entry as a licensed home health agency should stimulate other hospices to seek to meet the rigorous JCAH standards. Hospice provides many services not offered by traditional home health agencies at per visit charges that are competitive with those presently charged by those agencies. Hospice's market presence encourages competition among all home health agencies serving Palm Beach County, particularly for care of patients who are terminally ill or in the near-final stages of a catastrophic illness.
