The Issue The issue in this case is whether Petitioner is entitled to attorneys' fees.
Findings Of Fact On June 4, 1992, Respondent transmitted to the Division of Administrative Hearings file materials containing allegations that Petitioner was guilty of child abuse and Petitioner's demand for a hearing. The file was assigned DOAH Case No. 92-3396C. After several continunaces, DOAH Case No. 92-3396C was set for final hearing March 30, 1993, in Tampa. By letter dated March 23, 1993, Respondent, through the District Administrator of District 7, stated to Petitioner: [Respondent], during the trial preparation phase of this case, has voluntarily decided to reclassify your role in the incident in question. As a result of this reclassification, you are no longer identified as having committed abuse or neglect with respect to the alleged incident and the [abuse] report will be changed accordingly. On March 26, 1992, Respondent filed a motion to dismiss the case. On April 15, 1993, an Order Closing File was entered. On May 3, 1993, Petitioner commenced the above-styled proceeding by filing a Motion for Award of Attorney's Fees and Court Costs together with an affidavit of fees and costs. On May 7, 1993, Respondent filed a response demanding that the motion be dismissed. DOAH Case No. 92-3396C was initiated based on the complaints of a minor who charged that Petitioner, her uncle, had sexually abused her for six years on a weekly basis. Respondent's protective investigator spoke with the alleged victim, who repeated these charges, as well as to her parents, who believed her, and to a mental health counsellor, who either said she believed the alleged victim or at least did not say that she did not believe alleged victim. Petitioner steadfastly denied the charges. However, the protective investigator did not contact him prior to closing the case as proposed confirmed. Nor did the protective investigator contact the alleged victim's physician, who would have informed the protective investigator that physical examination of the vagina of the alleged victim disclosed no abnormal findings. The physician would have stated that the alleged victim evidently had not previously engaged in sexual intercourse, which would have contradicted the alleged victim's charges against Petitioner. The record does not disclose that the alleged victim ever recanted. The record contains no direct evidence of an improper purpose on the part of Respondent. In effect, Petitioner urges that such a purpose be inferred from the circumstances. As long as the alleged victim stood by her earlier statements, there remained a genuine issue of fact. Under all of the circumstances, her statement may not have been entitled to much weight. Perhaps evaluating the evidence in like manner, Respondent wisely concluded that its resources could be better directed than litigating DOAH Case No. 92-3396C. But the persistence of the alleged victim in charging Petitioner with sexual abuse undermines the inference that Respondent pursued the prosecution of Petitioner for an improper purpose. In the absence of stronger evidence contradicting the alleged victim's charges, Petitioner fails to show that Respondent maintained the prosecution for an improper purpose.
The Issue The issues in this case concern whether the Respondent is entitled to renewal of her license to provide residential services for persons who are developmentally disabled.
Findings Of Fact Introductory and background facts At all times material to this proceeding, the Respondent provided, and was licensed to provide, residential services for persons who are developmentally disabled. The Respondent provided these services in a group home where she had from 4 to 6 clients at any one time. From time to time representatives of the Department would identify deficiencies in the way the Respondent was providing the residential services. Typically, the Department would advise the Respondent of specific deficiencies following a visit to the Respondent's group home. The Respondent would often take steps to correct the identified deficiencies, but some deficiencies tended to occur again and again. The Department attempted to work with the Respondent to help her remedy deficiencies and to help her prevent future deficiencies. Eventually, on February 25, 1999, the Department advised the Respondent by letter that it did not intend to renew her license to provide residential services for persons who are developmentally disabled. The Department's letter of February 25, 1999, advised the Respondent that the "quality of care by your facility does not meet the minimum licensure standard[s] as specified in Chapter 10F-6," and went on to list a number of specific concerns under the major categories of "Administration" and "Health and Safety." The concerns itemized in the letter were as follows: Administration Records of expenditure from individual residents' accounts are not maintained. Lack of accountability of client's personal allowances. Inappropriate use of client's personal allowance. Inadequate receipts for client's expenditures. Incomplete employee files. Employees without personnel files. Health and Safety Clients locked inside the house without supervision. Gate/Entrance chained. Lack of evidence of all night supervision. Clients left unsupervised during a week- end. Inadequate food supply. Clients' lack of access to food. Food prepared away from residence. Menus not posted. The letter also advised the Respondent of her right to request an administrative hearing if she wished to contest the Department's proposed course of action. After some initial difficulties complying with the Department's requirements, the Respondent's group home (which had been moved from its original location without sufficient notice to the Department) was issued a conditional license on January 1, 1998, followed by a standard license issued on March 1, 1998. The standard license was valid for one year from the date of issuance. In March of 1998 when the standard license was issued, conditions at the Respondent's group home appeared to be satisfactory. For the first few months following the issuance of the standard license, the Department did not have any significant concerns about the manner in which the Respondent's group home was being operated. The Respondent appeared to be responsive to suggestions by Department personnel and appeared to be trying to work with Department personnel to operate her group home in a proper manner. From March through most of June of 1998, there were no major problems at the Respondent's group home. The incident on June 27, 19982 On June 27, 1998, an incident occurred at the Respondent's group home that caused the Department a great deal of concern. On that day, at approximately 4:30 p.m., Mr. L. N. arrived at the Respondent's group home, in Boynton Beach, Florida, to visit his son who is mentally retarded. He was unable to enter because the gate to the fence surrounding the home was chained and locked. He observed some of the group home residents in the front yard and others in the house. Still unable to enter the gate later when he returned, Mr. L. N. telephoned police. Road Patrol Officer Susan Gitto responded. At approximately 6:45 p.m., Officer Susan Gitto arrived at the group home and climbed the fence. One of the men at the group home kept pointing to the house next door, north of the group home. Officer Gitto found no one on the premises other than the six mentally handicapped men who were in their pajamas and inside watching television. Based on information from Mr. L. N., Officer Gitto telephoned the responsible agency, the Department of Children and Family Services (DCF). A DCF case worker supervisor, Anna Glowala, arrived at the group home at approximately 9:00 p.m. She described the residents as nervous. Most of them were functioning at a level below the ability to respond to emergencies, that is, unable to telephone 911 or to evacuate in case of a fire. Ms. Glowala prepared a preliminary report on her findings at the group home. Sometime after 9:00 p.m., a woman who identified herself as Elvira Brown arrived with a key to the group home. She intended to take care of the clients that evening, but was sent away by Officer Gitto, who also left the home soon after that. At approximately 12:45 a.m., on June 28, 1998, Ms. Glowala's supervisor, William D. Shea, arrived at the group home. Mr. Shea relieved Ms. Glowala and stayed with the residents for the rest of the night. The six adult residents, according to Mr. Shea, were lower functioning and non-verbal. At 6:15 a.m., a woman who identified herself as Sharon Butler arrived to cook breakfast and supervise the residents. She assured Mr. Shea that she was an employee of the group home and would remain at the group home until the licensed operator returned from an out-of-town trip. After he left, Mr. Shea asked Ms. Glowala to continue to monitor the group home by telephone until the operator returned. Mr. Shea did not check the woman's identity or determine whether she was, in fact, a qualified employee, as required by DCF. Mr. Shea testified that a group home operator may leave properly screened employees to relieve them when they are absent. The screening includes fingerprinting for police background checks. DCF witness, Sue Pearlman Eaton, received the report of the incident on June 30, 1998. On July 1, 1998, she initiated an investigation by visiting the group home. When she arrived, she found one resident in the front yard sleeping on a lawn chair, and others inside watching television. One resident took her to a room in response to her request for help finding the owner/operator, but no one was there. She noticed where five of the six residents of the home were located, and what they were doing. After approximately twenty minutes to a half hour, Ms. Pearlman-Eaton observed the operator coming into the house. She was angry and said she had been in the backyard with the sixth resident feeding her dogs. She told Ms. Pearlman-Eaton that she hired Ms. Butler to stay at the group home during her previous weekend trip to Tampa. The operator reported that she left at approximately 12 o'clock noon on Saturday, and that Ms. Butler was present when she left. Ms. Pearlman-Eaton also questioned Ms. Butler, as a part of her investigation. As she apparently confirmed, Elvira Brown, Ms. Butler's cousin, was supposed to stay at the group home from 2:00 p.m. until 10:00 p.m., while Ms. Butler worked at another job. According to Ms. Pearlman-Eaton's report, Ms. Brown telephoned Ms. Butler and told her that her work at the group home was completed between 6:00 p.m. and 7:00 p.m., and that the residents were in bed. The report indicated that Ms. Brown stated that Ms. Butler asked her to help by feeding the residents and getting them ready for bed. Then she was to lock the gate and leave. Based on Ms. Butler's statement to Ms. Pearlman-Eaton that the group home owner/operator Mrs. V. R. T. approved Ms. Butler's plan to have Ms. Brown serve as an interim caretaker, the investigators concluded that both of them were perpetrators of abuse by neglecting clients who require 24-hour supervision. DCF failed to present the testimony of either Ms. Brown or Ms. Butler at the hearing. Therefore, the testimony of Mrs. V. R. T. and her credibility could not be weighed against that of any other person with direct knowledge of the incident on June 27, 1998. Ms. Pearlman-Eaton's report noted that the group home clients and facility were neat and clean, with no clients "acting out" or appearing to be in distress. Prior to the time that the group home owner/operator came in from the backyard on July 1, 1998, Ms. Pearlman-Eaton did not look in the backyard or hear a car arrive. She also did not determine whether or not there were dogs in the yard. During Ms. Pearlman-Eaton's questioning of Ms. Butler, Ms. Butler told her that she also worked at the Flamingo Clusters, another facility licensed by the State to provide developmental services. Clients of Flamingo Clusters are more severely handicapped than those at the V. R. T. group home. Ms. Pearlman-Eaton was initially investigating Ms. Butler and Ms. Brown. She added the group home operator to the neglect report, after she waited for her for up to a half an hour after arriving, on July 1, 1998, to conduct her investigation. While she was waiting to find Mrs. V. R. T., her report indicates that Mrs. Pearlman-Eaton telephoned Anna Glowala, the case work supervisor. She was advised by Ms. Glowala that ". . . it was not necessary for residents to be in eye range of the supervisor continually and its [sic] okay for them to be left alone for no more than 1/4 hr." Anna Glowala also noted the condition of the group home when she stayed with the clients. She remembered there were two large dogs, one a Rottweiler, in the backyard. She also saw a pathway between the two adjacent houses, the group home and the house next door, which is owned by the owner/operator's husband. Ms. Glowala also saw laundry and other items on a sofa in the garage where the owner/operator claims that she sleeps. The garage area also included a refrigerator, washer and dryer. Kay Oglesby, a DCF senior case manager, testified that she had previously warned the owner/operator that the gate to the fence should not be locked and that the residents needed constant supervision. She believed that during her first year supervising the facility, the owner/operator and her husband occupied a master bedroom in the group home. After DCF requested that they take in two additional clients, in May 1998, the owner/operator said she moved to the garage. Ava Kowalczyk, a DCF Human Services Program Specialist, confirmed that only screened and approved employees may work in a group home. The owner/operator has the responsibility for assuring that group home employees are qualified. She expressed concern that the owner/operator may have left the residents with her husband before he was properly trained. Ms. Kowalczyk described the cluttered condition of the sofa in the garage as inconsistent with Mrs. V. R. T.'s assertions that she sleeps in the garage. Finally, DCF employee Martin J. Fortgang confirmed the need for adequate supervision and the DCF's determination that inadequate supervision constitutes neglect. The group home owner/operator, the Respondent, Mrs. V. R. T., testified that two years ago she married her husband, who had lived next door for 18 years. While he lived with her in the group home, her husband's house next door was leased. She knew she was required to live on the premises and testified that she has done so, initially in the master bedroom. After accepting two more clients, on an emergency basis after another group home closed, she moved to the garage. Her husband has apparently moved back to his home next door. In March 1998, Mrs. V. R. T. submitted to DCF, as confirmed by Ava Kowalczyk, the names of her husband, Sharon Butler, and another employee for screening and approval. The document included fingerprints and a police report, which showed that Ms. Butler had a prior arrest for armed burglary. Mrs. V. R. T. denied ever giving permission for Elvira Brown to substitute for Sharon Butler. Although Sharon Butler had numbers to reach Mrs. V. R. T. by pager and cellular phone, and at her hotel in Tampa, Mrs. V. R. T. denied that Ms. Butler ever telephoned her for approval to leave Ms. Brown at the group home. Despite her arrest record, the documents which Mrs. V. R. T. submitted and received from DCF appear to confirm that Ms. Butler was an acceptable employee. One memorandum labeled a "Routing and Transmittal Slip" dated 3/31/98 states: Per your request, I have processed the Transfer of Request Form for Sharon Butler. Please see enclosed printout and Transfer form. Please maintain the [sic] these in your personnel files. The record indicates that Mrs. V. R. T. received written notice that Sharon Butler was not an approved caretaker on July 16, 1998. In contrast to the apparent approval form of March 31, 1998, the notice on July 16, 1998, from Ava Kowalczyk asserted that: This is to document my visits to your house on June 30, 1998 and July 2, 1998. At that time you informed us that for a year you have had an employee Sharon Butler, who acts as caretaker in your absence. This employee did not meet basic standards of licensing requirements. Ms. Butler's file consisted of her fingerprint card and local law enforcement checks completed on her on or about March 31, 1998. This was the first time you brought to our attention that you employed someone other than yourself and your husband. Considering the contents of the Routing and Transmittal Slip attached to the documents dated March 31, 1998, it was reasonable for Mrs. V. R. T. to believe that Sharon Butler was an approved employee. One section on the Request for Transfer of Records indicates that Ms. Butler was approved for dual employment at the group home and another facility, having had her screening originally completed on October 3, 1994. DCF has failed to demonstrate, by a preponderance of the evidence, that Mrs. V. R. T. knew that Sharon Butler was not properly screened and approved on June 27, 1998, when she left her in charge of the group home. DCF has also failed to demonstrate that Mrs. V. R. T. knew or approved of plans for Sharon Butler to leave the group home clients in the care of Elvira Brown while she was out-of-town. Other problems at the Respondent's group home On some occasions the Respondent would lock the doors of the group home while the clients were inside. When she did so, she would leave the door keys on top of the television set inside the group home.3 On some occasions the Respondent would lock the gate in the fence around the group home property while clients were on the property. The Department usually made monthly review visits to the Respondent's group home. Some of the problems noted during these monthly reviews are described in the paragraphs which follow. During the review visit on June 30, 1998, some of the food for the clients was stored away from the group home premises, and was not readily available to the clients. Specifically, no drinks or snacks were readily available for the clients that day. The required 5-day supply of food was not present on the premises, and the food that was present did not correspond to the menu. During the review visit on August 26, 1998, there were errors in the personal allowance logs of the clients. Also, on this date once again the food supplies did not correspond to the menu. During the review visit on September 22, 1998, the personal allowance logs of the clients were not up to date. Specifically, there were no receipts, there was no documentation of the personal allowance received by any of the clients, and there was no documentation of the SSI/SSA benefits received by any of the clients. Once again, the food supplies did not correspond to the menu, and there were inadequate food supplies for a hurricane emergency. During the review visit on October 28, 1998, the personal allowance logs for the clients were again incomplete. Receipts for client expenses were missing, and there was inadequate documented information about the expenses. There were no menus posted on this day. Also, the gate to the fence around the Respondent's group home was chained shut when the Department personnel arrived. This condition was of particular concern to the Department personnel, because the chained gate was an obstruction to any emergency evacuation of the group home. During the review visit on November 20, 1998, the personal allowance logs for the clients were again incomplete and inadequate. Again, receipts were missing. Again, the food present at the group home was insufficient to constitute the required 5-day supply of food. Again, no menus were posted. Also, on this occasion the meals for the clients were being prepared next door, rather than in the group home, as required. All of the clients at the Respondent's group home were developmentally disabled adult males. All of the clients functioned at a very low developmental level. Some were just barely verbal. Clients at this level of disability need constant supervision while they are in the group home. They cannot be left unsupervised without exposing them to serious risk of harm to their well-being. Even at night when such clients are sleeping, a responsible, appropriately trained, adult must be present in the group home to provide supervision and assistance if one of the clients wakes up in the night and needs direction or assistance.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Children and Family Services District issue a Final Order in this case denying the renewal of the Respondent's group home license. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
Findings Of Fact Culmer Place Tenants Association and Allapattah Tenant Association are not-for-profit corporations chartered by the State of Florida (Exhibits 1 and 2). Allapattah has received IRS tax-exempt status as a publicly supported corporation. Culmer Place has applied for such status but has not as yet received the IRS designation. Both Culmer Place and Allapattah are tenant associations at Housing and Urban Development (HUD) projects in Miami, Florida. These HUD projects are low- income residences sponsored and managed by HUD. The principal source of funds for each Petitioner is HUD. The Associations submit a budget to HUD and receive funds semiannually. Culmer Place received $453 from HUD in 1980 and Allapattah received a slightly less amount. The Associations sponsor activities in their projects principally oriented towards children. These projects, which have been presented by both Petitioners, are the Easter project, family picnic on July 4, Christmas project, community movies, and trips to the circus or other attractions. In addition, one or both Associations have sponsored dances and held rummage sales. Allapattah is currently proposing the establishment of a softball team if funds can be obtained. The Easter project consists of purchasing candy and eggs, getting volunteers to dye the eggs and putting these treats in bags which are given to the children who participate. At Culmer they have an Easter egg hunt but lack of space for hiding the eggs requires the bag approach at Allapattah. The Christmas project is similar to the Easter project in that the Petitioners use the money provided by HUD to purchase candy, fruits and stockings which are taken around and given to the children who live in the project. At the family picnic on July 4, barbeque is provided, as is other food and drinks. It appears that the Associations primarily provide "refreshments" at the projects they sponsor. No picnic was held in 1981 because funds were not available. Other activities sponsored by the Associations include cleanup campaigns at which the young people are assembled to pick up trash and generally "clean up" around the projects. The Associations provide refreshments for the workers and HUD provides the funds to pay these youngsters for their cleanup work. The money for the refreshments is budgeted by the Associations and provided by HUD. The summer lunch program is carried out at these projects with the food for the participants provided by the City, County, or HUD. The volunteers who supervise the serving of the food and activities that accompany this project are members of the Associations and are paid by HUD for the three hours they are so engaged each day. Movies are occasionally shown at the projects. The film is usually rented and the residents are invited by "flyer" to attend. Sometimes cartoons are obtained to show to the children. Occasionally, free tickets to the circus or to some local attraction are obtained by the Associations who arrange the transportation for the children and supervisors to participate in these field trips. These-projects and activities are provided free to the participants and participation is not limited to children, or others, who live in the Petitioner organizations. "Flyers" advertising these projects are prepared and delivered to the residents, placed on the bulletin boards at the housing project office, and some flyers are distributed outside the housing projects by putting them on poles, in stores (that permit) and in washerettes.
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home. In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine. In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served. In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he returned to the residence, Petitioner broke a window in an attempt to gain entry. In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250. During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction. In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident. In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days, time served. Subsequently, Petitioner returned to jail for violation of parole. On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes. On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling. After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members. Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter. Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy. Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character. Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young children. Petitioner's church and family provide him with a solid support system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 18th day of April, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 18th day of April, 2002. COPIES FURNISHED: Anthony Bryant 960 Ontario Street Jacksonville, Florida 32254 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, 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 Is Petitioner entitled under Section 57.111(4), Florida Statutes, to attorney's fees and costs incurred in DOAH Case No. 97-5194?
Findings Of Fact Outcome of Prior Administrative Proceeding Thomas A. Birkhead, d/b/a Century Center ("Birkhead," "Mr. Birkhead, or the "business") is a business in the form of a sole proprietorship. On August 4, 1997, the Division of Hotels and Restaurants (the "Division") served the business with a Notice to Show Cause. Seven weeks or so earlier, on June 13, 1997, the business had been served with an Emergency Order of Suspension. The Emergency Order suspended the business's license to operate a public lodging establishment in Cocoa Beach, Florida, as a nontransient rooming house. The license, bearing number 15-04001 H, had been issued to Mr. Birkhead by the Division. Mr. Birkhead requested a hearing on both the Emergency Order and the Notice to Show Cause. The request was referred to DOAH and assigned Case No. 97-5184. Unlike this case for fees and costs in which Mr. Severs has appeared in behalf of Mr. Birkhead, at no time during the pendency of DOAH Case No. 97-5184 did any attorney, including Mr. Severs, file a notice of appearance or appear in any capacity on behalf of Mr. Birkhead. The hearing held in April and June of 1998 (at which Mr. Birkhead appeared pro se) culminated in a Recommended Order issued October 1, 1998. The order recommended that the Notice to Show Cause be dismissed but that the Emergency Order be sustained. On May 14, 1998, the Division issued a Final Order. The Order makes no mention of Mr. Birkhead having been represented in any capacity other than pro se in post-recommended order proceedings. In acceptance of the advice of the Recommended Order, the Division dismissed the Notice to Show Cause. As for the recommendation with regard to the Emergency Order the final order stated: The Emergency Order of Suspension was a final order of the Division and subject to judicial review pursuant to section 120.60(6) and 120.68, Florida Statutes, not administrative review. Thus, the part of Birkhead's request for formal administrative review that pertained to the issuance of the Emergency Order of Suspension should have been dismissed for lack of jurisdiction. Final Order, page 9, Paragraph 16. Accordingly, the Division ordered that "Birkhead's Motion to Dismiss is hereby granted and the request for formal administrative review of the Emergency Order of Suspension is hereby dismissed." Final Order, page 10. Attorney's Fees and Costs When Case No. 97-5184 was initiated, Mr. Severs had long represented Mr. Birkhead as an attorney in various matters. His normal billing rate during the life of the case was $175 per hour. Although Mr. Severs did not appear as attorney of record in the administrative case, from the time the Emergency Order of Suspension was issued in June of 1997, through the issuance of the Final Order by the Department in Case No. 97-5184, Mr. Severs provided legal services to Mr. Birkhead. Some of the services were related to the administrative case; some were related to other matters. The fees for these services, related or unrelated, totaled $14,929.95, according to the petition filed in this case. An affidavit by Mr. Severs, attached to the petition, showed that only $4,860 of that amount was related to the administrative case. The related services were performed on at least fifteen occasions. Principally these included review and/or drafting of documents and consultation with regard to the reviewed or drafted documents. Mr. Severs' records demonstrate that at least 32.4 hours were expended in the performance of legal services related to Case No. 97-5184. (There were many telephone consultations not included in these hours because Mr. Severs moved from one firm, to his own firm, to the Titusville City Hall, where he is now the full-time City Attorney for the City of Titusville. Because of these transitions, phone records became unavailable.) At an hourly rate of $150 (the rate requested by Petitioner for this case, $25 below Mr. Severs' normal rate), total attorney's fees for 32.4 hours come to $4,860.00. These fees are reasonable. Court reporter costs in defending this action incurred by Mr. Birkhead totaled $478.50. He paid an expert witness fee in the amount of $200 to an engineer who testified in the proceeding. In addition, there were subpoenas for documents of $42; publications, such as the Fire Safety Manual 101, necessary to purchase in order to defend the case, in the amount of $49.35; photocopies of $48.10; office supplies of $56.12; postage and postage stamps of $173.52; and copier maintenance of $605.13. These costs total: $1,655.72. Mr. Birkhead also claimed additional costs of more than $10,000 used to maintain and operate the closed Century Center as an office for the duration of the administrative case. Mr. Birkhead explained this claim at hearing: The building that I was in there using as an office [Century Center] was shut down by the Division, so I could do nothing with it, except just work out of there myself to prepare this case, to work on the case. So, what I have given here is the direct charges of -- you know, that were during the time period for electricity and so forth. (Tr. 25). In addition to electricity, this sum includes charges for telephone, sanitation, pest control, water and sewer and fire extinguisher maintenance. Small Business Party The business's claim for attorney's fees and costs is filed under the authority of Section 57.111, Florida Statutes, a provision of the Florida Equal Access To Justice Act (the "Act.") Section 57.111(3)(d), Florida Statutes, of the Act defines the term "small business party," in pertinent part as: A sole proprietor of an unincorporated business . . . whose principal office is in this state, who is domiciled in this state, and whose business . . . has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million including both personal and business investments. . . Mr. Birkhead is the sole proprietor of the business, Thomas A. Birkhead, d/b/a Century Center. The business is unincorporated. Its principal office is in Florida. Mr. Birkhead is domiciled in Florida and his business has less than 25 full-time employees. The only criterion left in order for Thomas A. Birkhead, d/b/a Century Center to qualify as a small business party is net worth. Is Mr. Birkhead's net worth "not more than $2 million including both personal and business investments . . ."? Net Worth Mr. Birkhead's undocumented testimony that his personal net worth and that of the business was less than two million dollars was not rebutted by any evidence offered by the Division. Cross examination revealed that Birkhead's net worth in June of 1997 was certainly in excess of $1.5 million. How much in excess could not be determined because his calculation of net worth was anything but precise as shown from Mr. Birkhead's testimony: Q What is the value of the hotel located across the street from the Century Center? A The value of the hotel at that time, I believe was one and a half million dollars . . . Q What portion of the hotel did you own? A Um? Q What portion of the hotel did you own? A Two thirds. Two thirds of the stock. * * * Q . . . And what was the Century Center worth [in June of 97]? * * * A Well, I had a mortgage against it for two hundred and some thousand dollars. I gave, I believe, five hundred something. So, five hundred and something minus two, whatever it was, forty or fifty thousand, two hundred and thirty five or forty thousand. It would leave three hundred thousand dollars. Q . . . Your testimony is that you've had an equity in the Century Center of three hundred thousand dollars? A That was my intention, to say that. Yes. I subtracted out in my mind the mortgage that I had against the property, versus what I had paid for it. Q And when did you purchase it? A I purchased it . . .in 1990. Q But you don't . . . know what the value was in 1997? A Not at the Century Center. * * * Q . . . What other properties did you own, besides the Century Center, the hotel and the condo in Cape Canaveral? A I own my house. Q How much is it worth? A Well I paid sixty five thousand for it, I believe. It's probably worth a little bit more than that now. * * * JUDGE: When did you buy it? * * * WITNESS: When did I buy it? I bought it in -- let's see. Twenty five years ago or more. * * * Q Was there any other property that we didn't cover so far that you owned at that time? A Let me think a little bit. Yeah. I've got one in Cape Canaveral. It's an empty lot up there. I think I paid very little for it. I bought it because it was cheap. It's the only reason I've still got the thing. I think I gave eighteen hundred dollars for it or something like that. It think it would be worth more than that now. I don't know exactly what it would be worth. Try to sell it. These lots go up, you know, they might be worth fifteen to twenty thousand dollars. I can't -- I can't give you an exact figure on that. JUDGE: When did you buy it? * * * A . . . April of 1967, I believe. * * * JUDGE: . . . What Mr. Biggins is getting at is he wants to know about all our your personal and business investments and what their . . . net worth is. And you said you made a list and you went through and you figured this out. WITNESS: Say what? JUDGE: You said that you figured this out before you filed this motion for attorney's fees . . . WITNESS: Yeah. I called and got the figures as to what I had in June of '97. And I looked at, you know, statements that I had, and this that and the other thing, and added it all up. . . Some of the things, like I say, are joint with my wife. JUDGE: Yes, sir. But what were those things? That's what I want to know. You say you did this calculation. You got together all this information. Now, what information was it and what did the information show? WITNESS: Well, it showed the value of the things that I had in June of '97. JUDGE: And what were those things? What information did you obtain? WITNESS: Well, bank accounts, stock brokers, whatever I could, you know, had money in. JUDGE: . . . What was the value of the bank accounts? WITNESS: Not a whole lot. I don't think I probably had over -- I'm guessing a little bit now. You know, three or four thousand dollars. JUDGE: How about stock? WITNESS: Um? JUDGE: Stock? WITNESS: Stock, what? JUDGE: Equities. WITNESS: Um? JUDGE: Equities? New York Stock Exchange? WITNESS: Well, my stock is largely in a joint account with my wife. And . . . JUDGE: . . . You have control of it? WITNESS: Um? JUDGE: You have control of it? WITNESS: Well, either one of us could be called in control. It's joint . . . with right of survivorship. JUDGE: . . . Did you include the value of that stock in this calculation you did? WITNESS: I believe I did. Yes sir. JUDGE: . . . And what was the value of that stock? WITNESS: I can't recall, Your Honor, exactly what it was. JUDGE: Well, we've been . . . dealing with approximations here. So, do your best. WITNESS: Well, it's a joint account. JUDGE: And what's the value of the account? WITNESS: . . . I think it's somewhere in the neighborhood of probably seventy five or a hundred thousand dollars. JUDGE: And you can't do any better than that? WITNESS: Um? JUDGE: You can't pinpoint it any more than that, a twenty five thousand dollar swing? WITNESS: I can't to be honest with you, Your Honor . . . (Tr. 38-50). Mr. Birkhead's testimony also revealed that he owned two "low priced condos in Cape Canaveral" (Tr. 36) held as rental property. At the time he purchased them, Mr. Birkhead "gave twenty four thousand and change for them." Id. Asked when they were purchased, Mr. Birkhead replied, "I'm not sure. Before 1997." When asked to approximate when they were purchased, Mr. Birkhead testified, "Five, ten years. I don't know." Id.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence submitted and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, Retirement Life Center, Inc., is licensed to operate Inverrary Retirement Center Annex at 5640 N.W. 28th Street, Lauderhill, Florida as an adult congregate living facility in compliance with Chapter 400, Part II, Florida Statutes. On October 27, 1985, at approximately 11:46 a.m. the Broward County Emergency Services received a call in reference to a person bleeding from the mouth at Inverrary Retirement Center Annex. Two paramedics with Broward County Emergency Services responded to the call and immediately went to the Respondent's adult congregate living facility. Upon arrival, the paramedics went to the fence but were unable to enter the premises because a locked padlock was on the gate. There were no staff members from the facility waiting for the emergency unit. The paramedics yelled out and rang a bell in an attempt to get someone to unlock the gate. One female staff member went to the gate, but she did not have a key so she left to get someone else. At least two minutes were wasted while the paramedics attempted to gain entry into the facility. When the gate was finally unlocked, the paramedics found the victim prone on the floor of the cafeteria, cyanotic and in cardiopulmonary arrest. The Respondent had previously performed an administrative inspection of Inverrary Retirement Center Annex on February 22, 1985. At that time, one of the deficiencies cited included the fact that locks were on the fence gate. When the facility was re-inspected on June 11, 1985, the deficiency had been corrected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered assessing an administrative fine of $500.00 against Retirement Life Center, Inc., d/b/a Inverrary Retirement Center Annex. DONE and ORDERED this 8th day of May, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4214 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Addressed in Conclusions of Law section. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 7. Rejected as a recitation of testimony and/or contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 4. Adopted in Findings of Fact 3, 4 and 5. Adopted in Finding of Fact 7. COPIES FURNISHED: Dr. Martin Marenos Inverrary Retirement Center Annex 2057 North University Drive Sunrise, Florida 33322 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 Northwest 167th Street Suite 210 Miami, Florida 33014 Sam Power 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 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
