The Issue Whether a civil penalty should be imposed upon the Petitioner for alleged violations of Chapter 400, Part II, Florida Statutes?
Findings Of Fact The Petitioner owns an adult congregate living facility. On May 28, 1985, Jim Temkin, an employee of the Respondent, inspected the Petitioner's facility. As a result of this inspection, Mr. Temkin noted four violations of the rules and regulations governing the operation of Florida adult congregate living facilities. (Other deficiencies, not relevant to this proceeding, were also noted). The deficiencies noted in Mr. Temkin's May 28, 1985, inspection report were as follows: ACLF 1 Styrofoam plastic ceiling is used in the dining room, sleeping rooms, hallway, bathrooms and laundry, the kitchen has a particle board ceiling all of which appear to be combustible. . . . . ACLF 2 The kitchen has a gas range and an electrical range without exhausts or automatic extinguishing systems. . . . . ACLF 3 The outside chimney stark [sic] for the gas heater in the resident dining room does not extend above the roof. . . . . ACLF 5 Bed No. 1 & No. 2 have unprotected windows into the dining room. The deficiencies quoted in finding of fact 3 (hereinafter referred to as "ACLF 1, 2, 3 or 5"), were discussed with the Petitioner by Mr. Temkin at the conclusion of his inspection. The Petitioner was given the opportunity to select reasonable dates for correction of the problems noted by Mr. Temkin. The Petitioner accompanied Mr. Temkin during his inspection on May 28, 1985. The following dates were agreed upon by the Petitioner and Mr. Temkin for the correction of the deficiencies noted in finding of fact 3: ACLF 1: February 1, 1986. ACLF 2: September 28, 1985. ACLF 3: July 8, 1985. ACLF 5: July 8, 1985. On March 24, 1986, Mr. Temkin returned to the Petitioner's facility to determine if the deficiencies noted in his May 28, 1985, report had been corrected. Deficiencies ACLF 3 and 5 had not been corrected. Deficiencies ACLF 1 and 2 had only been partially corrected. Therefore, as of March 24, 1986, the Petitioner had failed to correct the deficiencies within the correction periods agreed upon by the Petitioner and the Respondent. ACLF 1 involved the use of materials for the roofs of the rooms noted by the Respondent in violation of Section 6-5.1.3 of the Life Safety Code, National Fire Prevention Association Codes and Standards. Use of these materials constituted an indirect hazard to residents of the facility. As of March 24, 1986, the hazardous material had been replaced with sheet rock in only the back bedrooms. ACLF 2 involved the use of a range without proper fire protection. Failure to have the proper protection constituted an indirect hazard to residents because fire could easily spread from the kitchen to other parts of the facility. The Petitioner could have chosen from at least two methods to correct this problem. The Petitioner chose to install fire doors on the two exists from the kitchen. As of March 24, 1986, only one door had been installed. ACLF 3 involved an outside exhaust from a gas heater. Mr. Temkin estimated that the exhaust extended only 9 inches above the roof. Mr. Temkin did not measure the exhaust. Instead, Mr. Temkin merely observed the exhaust from the ground. Mr. Temkin's estimate is insufficient to prove that the exhaust was less than 2 feet above the roof. ACLF 5 involved two windows between two bedrooms and the "dining room." In fact, the windows were between two bedrooms and a sitting room; not the dining room. These windows did not, however, provide sufficient protection from fire outside the bedrooms to meet Chapter 17 of the Life Safety Code, National Fire Prevention Association Codes and Standards. The windows constituted an indirect risk to residents because fire could easily spread from the sitting room into the bedrooms. On May 1, 1986, Mr. Temkin inspected the Petitioner's facility again. ACLF 1, 3 and 5 had still not been corrected. Therefore, a new date was agreed upon for the correction of these items: August 1, 1986. The new date was not an extension of time. The new date was given simply because the Petitioner had failed to meet the originally prescribed date and a completion date had to be re-established. At no time before or after the original completion dates for ACLF 1, 2, 3 and 5 did the Respondent agree to a different completion date in substitution of the original dates or extend the original extension dates. The Petitioner took steps to correct ACLF 1, 2, 3 and 5. The steps taken by the Petitioner were not, however, successful in insuring that the deficiencies were corrected by the completion date originally agreed to by the Petitioner and the Respondent. The Petitioner has not been charged at any other time with a violation of the law applicable to the operation of an adult congregate living facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Petitioner be found guilty of, and a total civil penalty of $200.00 be imposed for, violating the Class III deficiencies identified by the Respondent as ACLF 1 and 2. It is further: RECOMMENDED: That the Petitioner be found not guilty of the Class III deficiencies identified by the Respondent as ACLF 3 and 5. DONE and ORDERED this 22nd day of January, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 22nd day of January, 1988. COPIES FURNISHED: Narvel Armstrong, pro se Post Office Box 261 Vernon, Florida 32462 John R. Perry, Esquire Assistant District 2 Legal Counsel Department of Health and Rehabilitative Services 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the allegations contained in Ms. Cheren's April 15, 1988 letter of denial of renewal, Petitioner, Earlen Braddy operated Earlen's ACLF home at 2840 47th Avenue South, St. Petersburg, Florida. Respondent, DHRS, is the state agency responsible for licensing ACLF's in Florida. Ms. Braddy has operated the ACLF in question at the current location for about four years during which time she has had as many as five residents at one time. Currently, and for the past year, she has had only three residents in the facility which she also occupies as her home. One current resident has been with her since she opened. On December 4 and 9, 1986, while Ms. Braddy was operating her ACLF in a licensed status, her facility was inspected by representatives of Respondent's Office of Licensure and Certification on its yearly survey. During the survey, the inspectors found several deficiencies, all of a Class III, (least serious) category, in such areas as Administration; Management and Staffing Standards, (6 deficiencies); Admission Criteria and Resident Standards, (3 deficiencies); Food Service, (12 deficiencies); Physical Plant, (5 deficiencies); Fire Safety, (1 deficiency); and Other Administrative Rule Requirements, (4 deficiencies). Though most deficiencies related to the failure to keep or provide the surveyors with the paperwork required to be kept by statute and the rules of the Department, some of the deficiencies related to resident care. These deficiencies were identified to Ms. Braddy in person by the inspectors at the time of discovery and again at the out-briefing. She was also advised as to how to correct them and where to secure assistance in doing so, if necessary. Nevertheless, and notwithstanding the uncorrected deficiencies identified in the December, 1986 survey and the March, 1987 follow-up, the Petitioner's license was renewed in April, 1987. Follow-up surveys were conducted in March, June, and October, 1987, at the next annual survey in 1988, and at its follow-ups. While some deficiencies originally identified were thereafter corrected, many were not. Another annual survey of the facility was conducted on February 16, 1988, prior to the issuance by the Department of the yearly renewal license. At this survey, again, numerous Class III deficiencies were identified including: Administrative, (5 deficiencies); Admission, (3 deficiencies); Food Service, (9 deficiencies); Physical Plant, (1 deficiency); Fire Safety, (3 deficiencies); and Other Administrative, (3 deficiencies). Many of these were carried over uncorrected from the previous year's survey, (December, 1986) and its follow- ups, and some were new. Some of the former remained uncorrected through the June, 1988 follow-up to the February, 1988 survey. In August, 1988, the Department filed three Administrative Complaints against the Petitioner seeking to impose monetary civil penalties against her. All three resulted in Final Orders being entered. In the last of the three, Petitioner was alleged to have committed five violations of the statutes and Departmental rules, all of which relate to Petitioner's alleged failure to "provide or make available for review documentation" in five certain areas. Petitioner and Respondent agree that these areas are those primarily involved in the uncorrected deficiencies outlined in the survey reports and upon which the Department relies to support denial of Petitioner's renewal. Petitioner readily agrees that the deficiencies cited by the Department both in the survey reports and in the Administrative Complaints existed at the time of identification and, in many cases, for some time thereafter. While Petitioner now claims all deficiencies have been corrected, her accountant, Mr. Schaub, indicates that at least one, that relating to the failure to document and keep on file scheduled leisure time, had not been accomplished previously and was not now being accomplished. As to the others, those requirements which were not being complied with at the time of the surveys are now being met. Some identified deficiencies were not actually defects. The documentation was being kept, but due to Petitioner's inability to keep up with it, was not made available to the surveyors. Mr. Schaub is convinced that Petitioner has a paperwork problem and needs help with it. She spends her time taking care of the residents without much help and does not keep up with the required paperwork. As he describes it, she is being "choked with red tape" due to the paperwork requirements imposed by the Department whose rules do not differentiate much in the requirements for record keeping between large facilities and very small ones as this is. In his opinion, however, and also in the opinion of the surveyors who visited the facility, the residents appeared to be clean, appropriately dressed, well fed, and content. Ms. Braddy contends that at the present, all the actions the rules require are being taken and while in the past she may not have done everything correctly, she has made the effort to comply with the instructions she received from the Department. She has recently hired an individual to help her and stay with the residents while she is gone. Before he came to work, she received some assistance from her children who, without pay, helped her from time to time. She believes her facility is now operating within the Department's requirements and there has been no survey conducted since June, 1988, to indicate whether this true or not.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Earlen Braddy, be issued a conditional license to operate an Adult Congregate Living Facility for a period of 6 months at which time, if all deficiencies are not corrected, the application for renewal be denied. RECOMMENDED this 12th day of December, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3025 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 None submitted. BY THE RESPONDENT 1. - 7. Accepted and incorporated herein Accepted and incorporated herein though the problem appears to be more a question of inability rather than unwillingness. Rejected as contra to the state of the evidence. Mr. Schaub indicated she would continue to have paperwork problems but with help could master the problem Not a Finding of Fact but a comment of the state of the evidence. COPIES FURNISHED: Gardner Beckett, Esquire 123 8th Street North St. Petersburg, Florida 33701 Edward Haman, Esquire Office of Licensure and Certification Legal Counsel Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether the Respondent failed to have the seating capacity required of a licensee in its category as alleged by the Notice to Show Cause and, if so, what disciplinary action should be taken.
Findings Of Fact At all times pertinent hereto, Respondent, EDM of Key West, Inc., d/b/a/ Portside, was the holder of a special restaurant license issued by Petitioner, Division of Alcoholic Beverages and Tobacco, Department of Business Regulation. This license, Series 6-COP, Number 54-00999SRX, authorizes Respondent to sell alcoholic beverages, subject to regulation by Petitioner and other authorities, in conjunction with its restaurant business. On November 16, 1988, Petitioner's law enforcement investigator, David Myers, inspected Respondent's premises to determine whether Respondent was in compliance with the regulations applicable to licensees such as Respondent. Two violations were discovered. The first was that the establishment failed to have sufficient seating for patrons under the covered portion of the premises. The second was that the establishment failed to keep adequate records of its sales of food and of its sales of alcohol as required by regulation. Official Notices were issued by Petitioner to Respondent for both violations. Investigator Myers told Respondent's dining room manager on November 16, 1988, that the establishment was required to have seating sufficient for at least 150 dining patrons under a permanent roof and that the seats located outside the roofed area could not be counted toward that requirement. This advice is consistent with Petitioner's interpretation of Rule 7A-3.014, Florida Administrative Code. Prior to December 12, 1988, Investigator Myers advised the management of Respondent that he intended to make a follow-up inspection on December 12, 1988. On December 12, 1988, there were 132 seats for dining patrons within the roofed area. Other seats for dining patrons were located in an uncovered area. Petitioner filed a Notice to Show Cause subsequent to its inspection of December 12, 1988, against Respondent alleging, in pertinent part, the following: On December 12, 1988, you, EDM OF KEY WEST INC., failed to have accommodations for service of 150 patrons at tables on your licensed premises . . . . The Notice to Show Cause did not cite Respondent for failure to keep adequate records of sales. On May 22, 1989, an inspection revealed that there was seating for only 118 dining patrons under the roofed area. On June 5, 1989, Respondent was found to be in compliance with the seating requirement. Respondent filed a timely request for hearing and therein denied the factual allegations of the charge brought against it.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having failed to have accommodations for the seating of 150 dining patrons as required by Section 561.20(2)(a)4, Florida Statutes, and by Rule 7A-3.014 and Rule 7A-3.015, Florida Administrative Code, and which imposes an administrative fine of $500.00 against Respondent. DONE and ENTERED this 21st day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1989. APPENDIX The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: Addressed in paragraph 1. Rejected as being unnecessary to the conclusions reached. Addressed in paragraph 2. Addressed in paragraph 3. 5-6. Addressed in paragraphs 4-5. Rejected in part as being unnecessary or subordinate to the findings made. 7-8. Addressed in paragraph 7. Rejected as being unnecessary to the result reached. Addressed in paragraph 3. 11-16. Rejected as being recitation of testimony or subordinate to the findings made. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel 725 South Bronough Street Tallahassee, Florida 32399-1000 James T. Hendrick, Esquire MORGAN & HENDRICK, P.A. Post Office Box 1117 Key West, Florida 33041 Leonard Ivey, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Stephen R. MacNamara, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole, General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Whether Respondents discriminated against Petitioner in the rental of her apartment based on Petitioner’s religion (Catholic) or handicap (Fibromyalgia) as alleged in the Petition For Relief filed by Petitioner with the Florida Commission on Human Relations (FCHR) on November 3, 2008.
Findings Of Fact At times relevant to this proceeding, Petitioner resided in an apartment located at 937 Southwest 7th Avenue, Miami, Florida (the subject apartment complex). Petitioner moved from the apartment in February 2008, after her rent subsidy payments ended. Guevara Management II, Inc. (Guevara Management) managed the apartment complex at which Petitioner resided. Rodo Guevera is an owner of Guevara Management. Mr. Ramirez is a tenant at the subject apartment complex. Mr. Ramirez has assisted Mr. Guevera from time to time in making emergency repairs at the complex, but Mr. Ramirez has no managerial authority or responsibility for the apartment complex. Petitioner testified that she suffers from Fibromyalgia. Petitioner’s only claim of discrimination based on her alleged disability is her observation that over the last couple of years other tenants who have assistive apparatuses for ambulation have moved out of the apartment complex. Petitioner does not normally use a cane or other assistive device to help her with her ambulation. Both Mr. Ramirez and Mr. Guevara testified, credibly, that they were unaware that Petitioner suffered from Fibromyalgia and that they had never seen her use a cane or other assistive device. Mr. Guevara acknowledged that certain tenants who used assistive devices for ambulation had moved out of the apartment complex over the past couple of years. Mr. Guevara explained, credibly, that those tenants had voluntarily moved to facilities that could provide them more assistance as their need for care increased. Petitioner alleged that Mr. Ramirez engages in voodoo practices and that he had vandalized her apartment because she is a Catholic. Petitioner alleged that Mr. Ramirez vandalized her apartment, left voodoo and cult paraphernalia in her apartment, cut off her water supply for three weeks, harassed her, and stalked her. There was no evidence that Mr. Ramirez, Mr. Guevara, or anyone acting on behalf of Guevara Management knew that Petitioner was Catholic or committed any act based on her religion. Petitioner had a physical confrontation with Mr. Ramirez after he cut off her water supply following a leak in a water heater. As a result of this confrontation, Mr. Ramirez obtained a restraining order against Petitioner and Petitioner was involuntarily hospitalized pursuant to Part I of Chapter 394, Florida Statutes, which is commonly referred to as the Baker Act. Petitioner was released following a week of hospitalization. Mr. Ramirez testified, credibly, that he only wants Petitioner to leave him alone. Mr. Ramirez’s denial that he has ever harassed or stalked Petitioner is credible. There was insufficient evidence to establish that Mr. Ramirez is a member of Santeria or any other cult. Mr. Ramirez testified, credibly, that he is Catholic. There was insufficient evidence to establish that Mr. Ramirez or anyone else improperly entered or vandalized Petitioner’s apartment. Mr. Guevara acknowledged that Petitioner’s water supply had been cut off on occasion so that necessary repairs could be made to the plumbing, but he further testified, credibly, that Petitioner’s water supply had never been cut off for a three-week period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the FCHR enter a final order finding Respondents not liable for the acts of discrimination alleged in the subject Petition for Relief. DONE AND ENTERED this 8th day of April 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 8th day of April 2009.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.
Findings Of Fact Petitioner Leneve Plaisime (“Plaisime”), whose country of origin is Haiti, was employed as a busboy and room service attendant at the Marriott Key Largo Bay Resort (“Marriott”)1 from 1995 to 1997. On September 13, 1997, upon returning to work after a vacation of several weeks, Plaisime was fired by a manager named Eric Sykas who said to him: “There is no job for you because the owner says he’s not interested in Haitians.”2 This statement was overheard by a co-worker of Plaisime’s named Fito Jean, who testified at the final hearing, corroborating Plaisime’s account.3 In around the middle of October 1997 (approximately one month after his discharge), Plaisime found a new job at Tak Security Corporation (“Tak”). Evidence introduced by Plaisime shows that he earned $7,862.52 at Marriott in 1997, which reflects an average monthly wage of about $925. Had he worked the entire year at Marriott, Plaisime would have earned a total of approximately $11,100. In contrast, working for Tak in 1998 Plaisime earned $11,396 (or approximately $950 per month)——a 2.7% increase in his annual income. There is no evidence showing what Plaisime’s likely income would have been in 1998 had he remained in the employ of Marriott. Ultimate Factual Determinations Marriott discharged Plaisime because of his national origin. Thus, Marriott committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes. The actual economic loss that Plaisime suffered as a result of Marriott’s unlawful discrimination against him was one month’s pay, or $925.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order declaring that Marriott discharged Plaisime on the basis of his national origin, in violation of Section 760.10(1)(a), Florida Statutes; prohibiting Marriott from committing further such violations; and awarding Plaisime $925 to relieve the effects of the unlawful discrimination that Marriott perpetrated against him. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2003.
