Findings Of Fact Petitioner James T. Steffens is currently employed as Chief of the Oneco-Tallevast Fire Control District located in Manatee County and has been so employed since June 1, 1982. The fire control district covers approximately 26 square miles southeast of Bradenton, and includes residential and commercial developments and some rural areas. The district employs six firefighters who, along with Petitioner, work a normal 3:00 A.M. to 5:00 P.M., Monday through Friday, work week. There are 28 volunteer firemen in the district who provide most of the firefighting services for the district. The career personnel are hired primarily to supplement the volunteer group during the ordinary work week. However, they and the Petitioner are also volunteer firefighters. During the period of his employment, Petitioner has taken charge of firefighting on six or seven instances, one of which occurred during his normal hours of employment. (Testimony of Steffens) Petitioner was hired as a result of a screening and interview process by the Board of Commissioners of the Oneco- Tallevast Fire Control District. They were interested in a person who could unify factions within the district and modernize district procedures. The Board of Commissioners was more interested in Petitioner's administrative skills rather than his qualifications as a firefighter. However, it was aware from prior communications with Respondent's personnel that either a certified firefighter should be hired, or if not, that the individual hired would have to be certified in Florida. Petitioner primarily performs administrative functions, such as personnel and budget matters, training and scheduling of personnel, procurement of supplies, and scheduling of fire inspection and prevention programs. Actual fire inspections are conducted by the district fire marshal. (Testimony of Petitioner, Skinner) Respondent's form FST-1 "Qualification of New Employee," was filed on behalf of Petitioner in June 1982 by Raymond F. Skinner, Jr., Secretary- Treasurer, Board of Commissioners, Oneco-Tallevast Fire Control District. The form reflected that Petitioner had completed the equivalency examination at the State Fire College, Ocala, Florida, on July 11, 1977, and the Report of Physical Examination that accompanied the form showed that he had no physical abnormalities. Upon inquiry by Respondent as to a discrepancy on the physical examination report that reflected Petitioner had adequate visual acuity, as compared to a prior medical report received by the Department showing that his uncorrected vision in the right eye was 20/200 and in the left eye, 20/400, the examining physician advised the Respondent that the earlier eye examination should be deemed correct. (Respondent's Exhibits 1-2) By letter of October 5, 1982, Mr. Skinner was advised by the Office of the State Fire Marshal that Petitioner could not be certified because he did not meet the requirements of pertinent law and regulations as to visual acuity, and also due to the fact that he had a "noticeable limp." Specifically, he was advised that Section 633.34(5), Florida Statutes, required that "Any person initially employed as a firefighter must be in good physical condition as determined by a medical examination as prescribed by the division," and that Rule 4A-37.37, Florida Administrative Code, implementing the statutory provision, provided in subsection (3) for adoption of the standards of NFPA 1001 (1974). The letter further stated that NFPA 1001, Chapter 2-2.7.2(b), provided that standard visual acuity, without correction, of less than 20/40 in one eye, and 20/100 in the other eye, was cause for rejection for appointment, and that Chapter 2-2.6.2.4(d) provided that shortening of a lower extremity resulting in any limp of noticeable degree was also cause for rejection. Subsequent to receipt of the letter from Respondent, Petitioner requested an administrative hearing. (Respondent's Exhibit 1) Petitioner does not meet the visual acuity standards set forth in the above-cited law and regulations in that his uncorrected eyesight is 20/200 in his right eye and 20/400 in his left eye. (Respondent's Exhibit 1-2, Stipulation) Respondent's ground for rejection of certification because Petitioner has a "noticeable limp" was based solely on observation of Petitioner by Mr. Raymond Schaffner, Program Coordinator for Fire Standards, Office of the State Fire Marshal. However, Mr. Schaffner has no knowledge of Petitioner having a shortening of either leg, nor is there any medical evidence in that regard. Although he is of the opinion that a person with a limp would have difficulty as a firefighter carrying heavy weights on stairs, or maintaining control on a ladder with his legs to free his hands, he is unaware of any actual limitations that Petitioner might have in this regard. (Testimony of Schaffner) Petitioner concedes that he has a slight limp, but can offer no medical explanation for it. He purchases trousers which have the same inseam for both legs. The problem becomes more pronounced if he becomes overweight. It has never hampered his sports activities in the past, or his prior activities as a volunteer firefighter since 1956. In 1977, he successfully completed the equivalency examination at the State Fire College in Ocala, which required that he perform field "evolutions" or practical exercises in firefighting. Although they do not necessarily test an individual's endurance, Petitioner participated in advancing heavy hoses and carried a man down from a ladder during his equivalency examination. He has performed "leg locks" on ladders "hundreds of times" in the past. (Testimony of Schaffner, Petitioner) Volunteer firefighters are not required to be certified by the state. However, Respondent's interpretation of applicable statutes is that the employed chief of a fire control district must be certified if he meets the definition of "firefighters" set forth in Section 633.31, Florida Statutes. (Testimony of Schaffner, Stark)
Recommendation That Petitioner James T. Steffens be determined unqualified for employment and certification as a firefighter pursuant to Chapter 633, Florida Statutes. DONE and ENTERED this 3 day of 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3rd day of May, 1983. COPIES FURNISHED: Richard W. Gross, Esquire Post Office Box 1302 Hialeah, Florida 33011 Susan E. Koch and Dennis Silverman, Esquires Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
Findings Of Fact When the events herein occurred, respondent, Shalom Manor, Inc. d/b/a King David Manor Retirement Home (King David), was licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregte living facility (ACLF) at 5800 N.W. 27th Court, Lauderhill, Florida. The corporate headquarters of Shalom Manor, Inc., were located at 901 South Federal Highway, Suite 200, Fort Lauderdale, Florida. On March 29, 1984 two HRS inspectors performed a routine annual survey of King David to determine whether King David was complying with all HRS requirements necessary for licensure. During the course of the survey, the inspectors noted that King David did not have an established fire and emergency plan. They accordingly charged respondent with having violated Section 3-8.a of HRS Manual 140-3. That manual is entitled "Fire Safety Standards for Adult Congregate Living Facilities." The manual is not a formal rule, but has been adopted and incorporated by reference in Rule 10A-5.23(15), Florida Administrative Code. The cited section (3-8.a) provides in relevant part that "a Fire and Emergency plan shall be established." It does not specifically require that the plan be in written form, or that it be posted in each resident's living area. According to the HRS inspectors, respondent was charged with a Class III statutory violation because it had no acceptable written plan, and the plan was not posted in each resident's room. When the survey was completed, the inspectors reviewed this deficiency with the facility's administrator, Graeme Burne, and advised him that the deficiency must be corrected within thirty days, or by April 29, 1984. They also described to him the type of plan necessary to comply with the HRS Manual, and told him it must be posted in each area where a resident resided. A thirty- day compliance period was used since the inspectors considered the deficiency to be a "paperwork" item that could be easily corrected within that time period. After returning to their office, the inspectors had a Form 1806 prepared. This form is entitled "ACLF Corrective Action Plan" and contains each deficiency noted during the survey, the class of violation, date for correction action, provider's plan of correction, when such correction is completed and the status of correction or follow-up. The form noted that the deficiency in question had to be corrected by April 29, 1984. The form was then signed by the HRS area supervisor and mailed to Burne on April 4, 1984. Burne received the form, inserted the comment "Being Prepared" in the column under the provider's plan of correction, signed it as respondent's administrator on April 27, 1984 and returned it to local HRS offices in Miami. On May 1, May 18, June 11, August 22 and October 31, 1984, the two inspectors made repeat surveys of King David's facility. They found no satisfactory fire and emergency plan had been established on any of those dates. On the August 22 visit Burne showed to the inspectors a diagram he had prepared, but was told it did not meet HRS requirements. On the March 29 visit, the inspectors also noted several other deficiencies besides the lack of a fire and emergency plan. All deficiencies, including the lack of a fire and emergency plan, were the subject of administrative complaints issued on July 12 and 26, 1984 in Case Nos. 85-0359 and 85-0360, respectively. 1/ By the issuance of these complaints, the corporate license received actual written notice of the surveys and cited deficiencies. Prior to that time, Burne had apparently neglected to tell the owners about the matter. On July 2, 1985, or approximately one year later, HRS issued the amended administrative complaint in this cause charging respondent with having failed to correct the deficiency by the August 22 visit. 2/ The complaint was served on Shalom Manor, Inc., at its Fort Lauderdale corporate address. After receiving the earlier complaints in July 1984 a representative of Shalom Manor contacted HRS offices in Miami and requested that all future correspondence regarding the matter be sent to the corporate owner's address in Fort Lauderdale. Respondent acknowledged that it had no fire and emergency plan posted on its premises. However, it established that the corporate licensee (Shalom Manor, Inc.) was never given any documentation regarding the alleged violation until the administrative complaints in Case Nos. 85-0359 and 85-0360 were filed. Moreover, neither the licensee or its administrator was given a document entitled "notice of deficiency" as required by Rule 10A-5.27, Florida Administrative Code. However, the corrective action plan sent to the administrator on April 4, 1984, contained all information referred to in the rule. Respondent also points out that after finally learning of the deficiency, it attempted to comply with HRS requirements, and through its administrator, presented a written plan to HRS inspectors on their August 22 visit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed on July 2, 1986, be DISMISSED, with prejudice. DONE and ORDERED this 19th day of August 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of August 1986.
The Issue Whether Respondent's renewal facilities licensure application for a group home contained a falsified fire inspection report, as alleged in the Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes. Rivero is an applicant for renewed licensure of a group home facility in Dania Beach, Florida. At all times material to the Administrative Complaint, Yitzhak Rivero was a corporate officer of Rivero. Mr. Rivero, was a psychiatrist in Cuba treating patients with mental and intellectual disabilities before he moved to the United States and became a citizen. He became a licensed mental health counselor, and for the past ten years has operated group homes in an effort to serve disabled persons, owning as many as seven group homes, employing 30 people at one time, and currently owning and operating three licensed group homes. On June 20, 2019, Sally Vazquez, then administrator for Rivero, submitted a license renewal application on behalf of Rivero’s Dania Beach group home to APD by hand delivering it to APD employee Patricia White, who was on the premises. On that same day, fire inspectors were also at the Dania Beach property to conduct an inspection. Prior to submitting the renewal application and supporting documents to APD on June 20, 2019, Ms. Vazquez prepared the application and compiled or prepared the supporting documents in the renewal application. The handwriting on pages 1 through 11 of the renewal application is that of Ms. Vazquez. Ms. Vazquez is listed as backup manager supervisor for Rivero on page 7 of the renewal application. After Ms. Vazquez prepared the renewal application and compiled the supporting documents, Mr. Rivero, as the group home owner, did a brief review of the application and supporting documents before he signed it. Before he signed it, Mr. Rivero identified nothing unusual in the application packet. When Mr. Rivero signed the attestation on the renewal application, which read, “Under penalty of perjury…all information contained in and submitted with application is true and accurate to the best of my knowledge,” he believed that the information in the application and supporting documents was true and correct. Unbeknownst to Mr. Rivero, the renewal application contained a document purporting to be a fire inspection report dated May 1, 2019, that was falsified. Mr. Rivero did not know the fire inspection was false when he reviewed the renewal application and signed it on June 7, 2019, or when Ms. Vazquez submitted it to APD on behalf of Rivero on June 20, 2019. In fact, the only email or communication Mr. Rivero received about the Dania Beach group home in regard to fire safety was a June 20, 2019, email sent by Fire Inspector Braun at 12:49 p.m., stating it was “From: Broward Sheriff’s Office Fire Rescue,” identified by the subject, “Inspection Report,” which contained an attachment related to the Dania Beach home from “Broward Sheriff’s Office Fire Rescue” bearing the agency’s logo that stated: “An annual fire inspection of your occupancy revealed no violations at the time of this inspection. Thank you for your commitment to maintaining a fire safe occupancy.” On August 21, 2019, when asked in an email from APD representative Kimberly Carty to provide the fire inspection report for Rivero, Mr. Rivero forwarded the email he had received from the Broward Sheriff’s Office Fire Rescue indicating no violations, the only fire inspection report for this home he had ever received, and the only fire inspection report regarding this property of which he was aware. On August 23, 2019, Ms. Carty sent Mr. Rivero a fire inspection report showing violations noted from the June 20, 2019, fire safety inspection of the Dania Beach group home. The report notes six, of what fire safety inspector Craig Braun described as less serious, non “critical-life” violations. Rivero was given 30 days to correct the violations.1 The day after he was sent the full fire inspection report for the Rivero Dania Beach group home, Mr. Rivero corrected the “easily corrected,” relatively minor violations in approximately three hours. Mr. Rivero then contacted the fire department to re-inspect the facility. When no fire inspector came to re-inspect for over a month, on September 30, 2019, Mr. Rivero sent an email to Mr. Zipoli, the fire inspector who had signed the inspection report showing the minor violations. Nevertheless, the fire department has never re-inspected the facility. Fire Prevention Officers Braun and Zipoli testified unequivocally and without contradiction that the document Mr. Rivero forwarded to APD’s Kimberly Carty on August 23, 2019 (the document indicating, “An annual fire inspection of your occupancy revealed no violations at the time of this inspection”), was a genuine and authentic document. Further, Officer Braun indicated that on June 20, 2019, he was Officer Zipoli’s supervisor, and that on that date Officer Braun and Zipoli “went together to inspect the Rivero Group Home.” “[U]sually…just [one] fire safety inspector goes,” and it was “not the norm” for two fire safety inspectors to go together. In this unusual situation, Fire Safety Inspector Zipoli wrote the report of the June 20, 2019, inspection, and Fire Safety Inspector Braun “wrote a report,” a separate report, indicating that he “assisted him [Zipoli] on another 1 These violations included: front and rear door of the group home (two doors) had a key lock instead of a “simple thumb turn or something that does not require special knowledge”; a fire alarm needed to be updated with its annual fire inspection from a private contractor; a fire extinguisher needed to be mounted on its mounting on the wall instead of placed on the ground beneath the mounting; the fire extinguisher needed to have its annual certification updated for 2019; the smoke detector located in the kitchen needed to be moved to a different location. form.” It was this other form that Officer Braun completed--this fire safety “Inspection Assist” for--that was emailed to Mr. Rivero on June 20, 2019. It was this form that stated, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection.” Officers Braun and Zipoli confirmed that the Broward Sheriff’s electronic streamline system “had a ‘glitch,’” “a default problem at that time,” the period including June 20, 2019, that caused the “template of an assist” ( i.e., an Inspection Assist form) to generate the statement indicating, “[a]n annual fire inspection of your occupancy revealed no violations at the time of this inspection,” and the system gave fire safety inspectors no option or ability to remove this statement. When APD’s Kimberly Carty requested that Mr. Rivero send the most recent fire inspection report for the Rivero Dania Beach group home, Mr. Rivero forwarded to Ms. Carty the document he received on June 20, 2019, from Broward Sheriff’s Office Fire Rescue without altering or changing the document in any way. The first time Mr. Rivero was notified that the fire inspection report submitted with the renewal application at issue here was false was when he received the Administrative Complaint in this case on October 23, 2019. In addition to the June 20, 2019, document Mr. Rivero received from Broward Sheriff’s Office Fire Rescue that indicated “no violations,” and the fire inspection report indicating six violations that was sent to Mr. Rivero by APD on August 23, 2019, this case involves a document dated May 1, 2019, purporting to be a Broward Sheriff’s Office Fire Rescue fire inspection that was fabricated (“the false fire inspection report”). The false fire inspection report was submitted to APD by Ms. Vazquez during APD’s June 20, 2019, inspection of the Rivero’s Dania Beach group home. At the time she submitted the application with the false fire inspection report, Ms. Vazquez had worked for Rivero for at least six years, and for at least two years as an administrator for between four and seven group homes. At the time she submitted the application at issue in this case to APD, Ms. Vazquez had prepared more than 20 APD renewal applications for Mr. Rivero’s group homes. In short, Ms. Vazquez was a “trusted employee,” whom Mr. Rivero relied on to accurately prepare applications and the documents submitted with the applications, and to handle the inspections conducted by APD. After Mr. Rivero learned, by receiving the Administrative Complaint in this case on October 23, 2019, that an altered or falsified document had been submitted as a fire inspection report with Rivero’s Dania Beach group home’s annual renewal application to APD, he conducted an investigation to determine how it had happened. When Mr. Rivero determined Ms. Vazquez was to blame for the false fire inspection report being submitted with the application, he fired her. The evidence presented indicates Ms. Vazquez created and submitted the falsified fire inspection report in violation of her job duties and professional obligations, and without the knowledge or consent of Mr. Rivero or Rivero.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons With Disabilities enter a final order dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 17th day of April, 2020. COPIES FURNISHED: Sean Michael Ellsworth, Esquire Ellsworth Law Firm, P.A. 1000 5th Street, Suite 223 Miami Beach, Florida 33139 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony Vitale, Esquire The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Daniel Ferrante, Esquire Health Law Offices Of Anthony C. Vitale, P.A. 2333 Brickell Avenue, Suite A-1 Miami, Florida 33129 (eServed) Danielle Thompson Senior Attorney/Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 309 Tallahassee, Florida 32399-0950 (eServed) Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue in this case is whether Orange County Fire Rescue (Respondent) committed an act of unlawful employment discrimination against Marlene Serrano (Petitioner) in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact The Petitioner is a Puerto Rican-born Hispanic female. At all times material to this case, the Petitioner was employed by the Orange County Fire Rescue Department (FRD), a unit of the Orange County government. In order to increase the number of firefighters available to the Respondent, the FRD posted a job advertisement in July 2008 ("Job Req. #007931"), seeking to hire state- certified paramedics who were capable of becoming state-certified firefighters. The advertisement clearly indicated that applicants should be state-certified paramedics who were "[c]apable of successfully completing and maintaining the Florida State Firefighter certification after three (3) years of being hired." Employees hired into the new paramedic-firefighter positions were identified as "paramedics." Employees hired as paramedics only were identified as "PMOs." On September 8, 2008, the FRD officially hired four paramedics for the positions advertised by Job Req. #007931. The group included the Petitioner, two Caucasian females (Sarah Wilson and Jennifer Massey) and a Caucasian male (Shane Doolittle). It was commonly understood by those hired, including the Petitioner, that they were required to obtain state certification as firefighters by September 18, 2011, the third anniversary of their employment. Pursuant to the advertised job requirements, the paramedics were required to pass a physical ability test (referred to as the "CPAT") and complete the Orange County firefighter orientation program. The Petitioner passed the CPAT on her second attempt and completed the orientation program. Candidates seeking to be certified by the State of Florida as firefighters are required to complete a 450-hour firefighter training course (commonly referred to as Firefighter I and II Minimum Standards classes) and to pass a firefighter certification exam. The Petitioner had completed the Firefighter I and II Minimum Standards classes as of December 17, 2010. On December 22, 2010, the Petitioner took the firefighter certification exam at the Central Florida Firefighter Academy and failed the hose and ladder components of the exam. When the Petitioner failed to pass the exam, the Respondent placed her in a fire station with a ladder truck company so that she could improve her ladder skills. On February 22, 2011, the Petitioner retook the firefighter certification exam at a training facility in Ocala, Florida, where she successfully completed the hose component of the exam, but again failed the ladder component. A candidate for firefighter certification is permitted to take the exam twice. A candidate who twice fails the exam is required to retake the Firefighter II Minimum Standards class before being permitted to retake the certification exam. On March 8, 2011, the Petitioner met with FRD officials to assess her progress towards obtaining the firefighter certification. The Petitioner had received notice of the meeting on March 1, 2011, from Assistant Fire Chief Brian Morrow. Similar meetings occurred with the other paramedics employed by the Respondent. During the meeting, the Petitioner advised the FRD officials that she intended to dispute the results of her second test. The Petitioner was aware that she could not retake the certification exam without retaking the Firefighter II Minimum Standards class. Although the Petitioner contacted a training facility to inquire about course schedules, she did not attempt to retake the training course. The March 8 meeting and discussion was memorialized in a letter to the Petitioner dated March 14, 2011. The letter contained an assessment of her progress towards certification. The letter also noted that she was required to obtain her state certification prior to September 18, 2011, and that failure to obtain certification by that date could result in termination of her employment. The Petitioner received the letter on March 16, 2011. In an email dated March 22, 2011, to FRD Lieutenant John Benton, the Petitioner advised that she was trying to determine how she would be able to go to class and maintain her work schedule. Lt. Benton forwarded the email to Assistant Fire Chief Morrow. Assistant Fire Chief Morrow replied to the Petitioner's email on March 29, 2011, wherein he advised her that the FRD had met its obligation to fund the certification training. He asked the Petitioner to advise him of the status of her appeal, to identify the class she was planning to take, and to outline her schedule and specify the hours she would use as vacation time and as "time trades." He asked for a response "as soon as possible" and invited the Petitioner to contact him directly to resolve any questions. The Petitioner received Assistant Fire Chief Morrow's March 29 email, but did not respond to it. Assistant Fire Chief Morrow subsequently contacted the Petitioner by telephone to inquire as to the issues noted in the email, but received little additional information from the Petitioner regarding her plans. After receiving the official notice that she had failed her second attempt at the certification exam, the Petitioner filed an administrative appeal (DOAH Case No 11-1556) to dispute the scoring of the exam. A hearing was conducted before an Administrative Law Judge (ALJ) on May 24, 2011. On July 7, 2011, the ALJ issued a Recommended Order finding that the Respondent failed the exam and recommending that the appeal be denied. By Final Order dated August 20, 2011, the State of Florida, Department of Financial Services, Division of State Fire Marshall, adopted the findings and recommendation of the ALJ and denied the Petitioner's appeal of the exam grading. The Final Order specifically noted that the Petitioner's certification was denied until she obtained a passing score on the exam. The Petitioner made no further efforts to become a state-certified firefighter. She did not register to retake the Firefighter II Minimum Standards class. As of September 17, 2011, the Petitioner was not a certified firefighter and was not actively engaged in seeking certification. Because the Petitioner did not meet the published job requirements and was making no effort to meet them, the Respondent terminated the Petitioner from employment on September 17, 2011. The Respondent offered to permit the Petitioner to resign from her employment rather than be terminated, but she declined the offer. At the hearing, the Petitioner testified that, after she twice failed to pass the certification exam and was unsuccessful in challenging the scoring of the second attempt, she had no further interest in obtaining the certification. There is no evidence that the Petitioner requested an extension of the applicable three-year certification deadline. Nonetheless, the Petitioner has asserted that the Respondent provided deadline extensions to other paramedics and that the Respondent's actions, in not providing an extension to her and in terminating her employment, were based on her race or national origin. There is no evidence to support the assertion. The March 14, 2011, letter specifically referenced the published job requirements set forth in Job Req. #007931, as well as the applicable provisions of the Collective Bargaining Agreement (CBA) governing the Petitioner's employment by the Respondent. The Petitioner was a member of the Orange County Professional Fire Fighters Association. Her employment by the Respondent was subject to a CBA dated December 14, 2010, between the Respondent and the Orange County Professional Fire Fighters Association, Local 2057, International Association of Fire Fighters. Section IV, Article 60, of the CBA provided as follows: ARTICLE 60 - PARAMEDIC PROMOTIONS/STATUS CHANGE Employees in the Paramedic classification agree to, upon reaching three (3) years of employment [sic] to meet the requirements of the Firefighter classification. Either upon reaching three (3) years of employment, or upon the desire of the department, the employee shall be moved from the Paramedic pay plan to Step 1 of the Firefighter pay step plan or to the higher nearest step to the employee's Paramedic current rate of pay. Nothing in this Agreement shall prohibit the Orange County Fire/Rescue Department from terminating the employment of a Paramedic when upon reaching three (3) years employment the minimum requirements for the position of Firefighter have not been met. Employees not meeting the minimum qualifications by the three (3) year employment anniversary may be separated from county employment without a predetermination hearing (PDH) and without access to Article 17 - Grievance and Arbitration Procedure of this contract. It is the sole discretion of Fire Rescue Management to extend the three (3) year time frame limitation due to case-by-case circumstances and/or operational need. The evidence establishes that certification deadlines have rarely been extended by FRD officials. The evidence fails to establish that FRD officials have considered race or national origin in making decisions related to deadline extensions. Sarah Wilson, a Caucasian female, was hired at the same time as the Petitioner and the deadline by which she was required to have obtained firefighter certification was September 18, 2011. Ms. Wilson completed the training course on September 15, 2011. She was scheduled to sit for the certification exam on October 4 and 5, 2011. The scheduling of the exam was the responsibility of the training facility. Neither Ms. Wilson nor the Respondent had any control over the testing date or the scheduling of the exam. The Respondent permitted Ms. Wilson to remain employed beyond the certification deadline and through the dates of the exam, an extension of 17 days. The extension granted to Ms. Wilson was the only time that the Respondent has allowed a paramedic more than 36 months of employment in which to obtain the required certification. Ms. Wilson passed the firefighter exam on October 4 and 5, 2011, and became a state-certified firefighter. Had Ms. Wilson not passed the exam on October 4 and 5, 2011, her employment would have been terminated by the Respondent. At the time of the hearing, Ms. Wilson retained all required certifications and remained employed as a firefighter paramedic with the FRD. In contrast to Ms. Wilson, the Petitioner was making no effort to obtain the required certification when the certification deadline passed. There was no evidence that the Respondent's extension of Ms. Wilson's certification deadline was based upon race or national origin. Jennifer Massey, a Caucasian female who was hired at the same time as the Petitioner, left her employment with the Respondent prior to the certification deadline. Shane Doolittle, a Caucasian male, was hired at the same time as the Petitioner, and the deadline by which he was required to have obtained firefighter certification was originally September 18, 2011. However, Mr. Doolittle was called to active military duty for three months during the three-year certification period. In order to provide Mr. Doolittle with the full 36 months of employment prior to the certification deadline, the Respondent extended Mr. Doolittle's certification deadline by three months, to December 18, 2011. In contrast to Mr. Doolittle, the Petitioner was employed and present with the FRD throughout the three-year period and had a full 36 consecutive months in which to obtain the required certification. There was no evidence that the Respondent's extension of Mr. Doolittle's certification deadline was based upon race or national origin. Mr. Doolittle did not become certified by the extended deadline, and the Respondent terminated his employment on December 18, 2011. There is no evidence that the Respondent was not invested in each paramedic successfully completing their training and meeting the requirements set forth in Job Req. #007931. The Respondent hired 12 paramedics in 2008. The Respondent paid the tuition and equipment costs for each paramedic who sought state certification as a firefighter. Additionally, the Respondent paid the salaries and benefits for the paramedics while in classes or exams, as well as the costs of the employees who covered the shifts of such paramedics. The Petitioner received the same training and benefits as all other employees seeking certification. The Respondent anticipated that the Petitioner would ultimately complete the training and exam requirements for certification, and she participated in the recruit training graduation ceremony with her colleagues. The 2008 hires included a Puerto Rican-born Hispanic male who obtained his firefighter certification prior to the deadline, and a Caucasian male who resigned from employment in lieu of termination because he had not obtained the firefighter certification by the deadline and was making no progress towards doing so. During the termination meeting with the Petitioner, FRD Chief Michael Howe advised the Petitioner that she was eligible for re-employment with the FRD if she obtained the firefighter certification. About a week after the termination meeting, Chief Howe called the Petitioner and left a voice message, offering to loan equipment to the Petitioner and to sponsor her for a discount on tuition costs, should she choose to retake the required course and become re-eligible for the certification exam. Chief Howe received no response from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by the Petitioner against the Respondent in this case. DONE AND ENTERED this 8th day of February, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 February, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Susan T. Spradley, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Scott Christopher Adams, Esquire LaBar and Adams, P.A. 1527 East Concord Street Orlando, Florida 32803 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times, material to this case, Petitioner has been licensed by the Department to operate an adult congregate living facility (ACLF) which is located at 6200 West Fairfield Drive, Pensacola, Florida, and is known as the Warrington House. Francis Cooper is the sole shareholder and operator of the Warrington House. Prior to 1984, the Warrington House was known as the Heritage House and was owned by a Mr. Mitchell. Sometime in 1984, Mr. Mitchell was criminally charged with elderly abuse on his residents and the Heritage House went into receivership. Another branch of HRS who was represented by Esther Ward, asked Ms. Francis Cooper to take over the facility. HRS was apparently well satisfied with Ms. Cooper's qualifications in running an ACLF since she had another such facility. When Ms. Cooper took over the Heritage House the electrical power to the facility was about to be turned off. Only by Ms. Cooper's pleading with Gulf Power was that circumstance forestalled. There were only thirteen (13) patients at the facility out of the sixteen (16) that were supposed to have been there. Three (3) of the patients had been mysteriously removed during the night. The residents that were at the house could not identify themselves and very few resident records were at the facility. The building was infested with roaches, there was raw sewage in the yard and the sewage system was completely blocked to the extent that sewage came up through the showers when a toilet was flushed. There was urine in every carpet. None of the appliances in the house worked. There were no air conditioners, fans or plastic dishes. The floors were in bad shape. In fact, Ms. Cooper fell through two of the bathroom floors. When Ms. Cooper questioned HRS representatives about the appalling conditions of the facility, she received no responsive answer. After Ms. Cooper had taken over the facility, she discovered that Mr. Mitchell had absconded with three months advance rent from the residents. Ms. Cooper, therefore, had to operate the premises for three months without income from the residents that were there. She used her own money. Ms. Cooper started with the air conditioning, flooring and carpeting. All these items were replaced. The bathrooms were tiled and additional bathrooms were added. She put in a $6,000.00 sewage system, a lift station and paid $1,000.00 to hook the building onto city sewage. She also brought in an exterminator to get rid of the bugs. All of this took place over a period of two years wherein Ms. Cooper worked diligently to bring the building up to "snuff." In fact, in the time since she has had the facility she has accomplished wonders in improving conditions at the house. These conditions clearly did not appear overnight, but over several years and were apparently overlooked by Respondent until the crisis with Mr. Mitchell had occurred. Ms. Cooper went into the house with the understanding that the corporation would eventually build another facility and close what had become the Warrington House. The reason for the new construction was that the current building, regardless of the amount of repair, was still an old building not worth maintaining and which was allowed to deteriorate badly prior to her stewardship. However, due to a falling out with her brother, who was then a co- shareholder of the corporation, Ms. Cooper was unable to complete her plans for moving the residents of the Warrington House to a new facility. She continues to attempt to obtain financing to build a new facility. At least once a year, HRS does a full survey on a ACLF like the Warrington House. A full survey is simply an inspection of the property in order to determine the degree of compliance with HRS rules and regulations. Upon completing the inspection, the inspector goes through an exit briefing with the ACLF's management. During the exit briefing, the inspector will go over any deficiencies he or she has discovered and attempt to establish mutually agreeable correction dates. The inspector also explains that these time periods are the best estimates that they can come up with at that point to allow a reasonable amount of time for the required corrections to be made. If any problems should arise, the inspector requests that the manager communicate with his or her office and ask for an extension. Extensions are not always forthcoming. After the full survey inspection is done, a follow-up visit is normally scheduled to determine whether the earlier cited deficiencies have been corrected. If, after the follow-up survey there are items that are still not corrected, the inspector will explain to the person in charge that they are subject to administrative action and that he or she will report he facility's noncompliance to his or her office. Whether or not administrative action is taken is determined at a level above the inspector. However, it appears that the customary practice of the office is to pursue an administrative fine for any noncompliance after the correction date has been passed. After the first follow-up survey has been made it depends on the particular factual situation whether or not further follow-up surveys are made until compliance is achieved. If there are efforts being made to correct the problems further follow-up surveys will be made. If not, further follow-up surveys may not be made. In this case, James Temkin, an HRS Fire Protection Specialist, performed a full survey fire safety inspection on the Warrington House on September 24, 1986. During that survey, he cited 11 deficiencies. Various compliance dates were established for the deficiencies. A follow-up survey was conducted by Mr. Temkin on January 14, 1987. During that survey, he noted that 6 of the previously cited deficiencies had not been corrected. He recommended administrative action on all the uncorrected deficiencies. The six remaining uncorrected deficiencies were as follows: No up to date fire plan and the July 7th fire drills were not documented; No fire alarm test since July 1986 and fire alarm zones were not shown on the actuator panel; Smoke detectors not working in four (4) rooms; Exit sign lights burned out at the front and center exits, emergency lights not working at the front, rear and upstairs exit halls; Sleeping rooms had hollow core doors; and There was no documentation of fire safety on the wood paneling and tile ceilings on the first and second floors. All other deficiencies cited during the September 24, 1986 full survey were corrected. As to the alleged deficiencies contained in the latter half of (b) and (c)-(f) above, none appear at any point in HRS' rules governing ACLF's. Supposedly, these deficiencies are cited in the NFPA life safety code, which is incorporated by reference in the Fire Marshal's rule on ACLF's, Rule 4A-40, Florida Administrative Code. The 1984 version of Rule 4A-40, Florida Administrative Code is incorporated by reference in HRS' rule, Rule 10A-5, Florida Administrative Code. Both HRS' rule and the Fire Marshal's rule are contained in the Florida Administrative Code. However, the 1984 version of NFPA is nowhere to be found in the Administrative Code. The current Fire Marshal's rule adopts portions of the 1985 NFPA life safety code. However, the HRS' rule adopts the 1984 version of the Fire Marshal's rule. No showing was made by Respondent as to what the 1984 version of the NFPA code contained. The HRS inspector's testimony regarding a particular deficiency's inclusion in the NFPA cannot be relied on since both inspectors apparently used the 1985 version of the NFPA which is not the 1984 version included in HRS's rule. Without proof of the contents of the NFPA, HRS has failed to prove any deficiencies for which it may take administrative actions. As to the other deficiencies, attempts to comply were in fact made by the Warrington House. The facility's personnel in fact thought they had complied with HRS' desires based upon previous inspections. However, for one reason or another, these attempts were rejected by the HRS inspector and the deficiency was cited again, but because of another reason. The lack of an up- to-date fire plan (cited in (a) above) was met by the Warrington House when they obtained a fire plan prior to the established correction date from another arm of HRS responsible for devising such plans. However, upon the January 14th follow-up inspection, the plan obtained from HRS by Petitioner was considered insufficient in that it did not outline staff responsibilities during a fire. The same thing occurred with the lack of fire alarm tests, cited in the latter part of (a) and the first part of (b) above. The Warrington House obtained the testing document and test from another branch of HRS responsible for such testing. However, the inspector at the follow up survey did not deem his own agency's testing documents sufficient since it did not show a different type sending unit was being tested at least once a year. 1/ These are simply not repeat deficiencies since in each instance the earlier grievance had been met and it was another grievance which cropped up. On July 9, 1987, a second follow-up survey to the Temkin September 24, 1986, full survey was performed by O.B. Walton, an HRS fire safety inspector. The evidence was not clear as to any remaining uncorrected deficiencies, if any, he found. Therefore, Respondent failed to establish any repetitive deficiencies as a result of the July 9 follow-up survey. Apparently, however, Mr. Walton, did perform another full survey on July 9, 1987. Several additional deficiencies were cited by him. A follow-up visit was conducted by Mr. Walton on October 23, 1987. Four alleged deficiencies remained uncorrected as follows: Ceiling not repaired in hot water heater closet, i.e. not taped; Kitchen fire door latch was jammed open so it would not latch, but it would stay closed; Plug by hot water heater had no cover; No documentation that drapes were fire retardant. Again, none of the above alleged deficiencies appear in HRS' rules or in the fire marshal's rule and a reasonable person could not glean from any of the other provisions contained in HRS' rules that the above conditions might be included in these provisions. The lack of clarity or uniformity in interpretation of HRS' rules is especially born out in this case since two different inspectors while inspecting the same building cited different deficiencies under their respective interpretation of the rules. When the experts differ it is difficult to see how a reasonable lay person could even begin to know or understand the contents of HRS or the Fire Marshal's rules. This lack is especially true since the relevant contents of the 1984 NFPA life safety code are not contained in the Florida Administrative Code and were not demonstrated by HRS. HRS, therefore, failed to prove any repeat deficiencies from the October 23, 1987 follow-up survey. A third fire safety follow-up visit was conducted by Pat Reid, a human services program analyst, on January 21, 1988. She has no expertise or license to perform fire safety inspections. She found all of the earlier cited uncorrected deficiencies corrected except for the documentation on the drapes. That alleged deficiency was partially corrected since Petitioner was replacing the drapery with metal blinds. However, as indicated earlier the lack of documentation for fire retardant drapes was not proven to be a violation by Respondent. Ms. Reid had previously conducted a full survey of Petitioner on August 17 and 18, 1987 in her area of expertise operation and general maintenance of an ACLF. Several deficiencies were cited and correction dates were established. Ms. Reid conducted a follow-up survey to the August 17 and 18 full survey on October 23, 1987. The following alleged deficiencies had not been corrected: Facility staff do not have documentation of being free of communicable diseases; The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease; Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom; Faucet of first floor bathroom is loose; Carpeting in first floor resident room (#7) is badly stained; Three vinyl chairs in dining room have tears, exposing foam padding; Second floor bathroom faucet nearest exit does not clearly distinguish between hot and cold water taps. As to the alleged deficiency contained in (a) above, the regulations do not contain a requirement that any documentation be kept regarding staff members being free of communicable disease. The regulations only require that the facility administrator assure that staff is free of communicable disease. The evidence showed that Petitioner had in fact assured that the staff was free of communicable disease. Therefore, no violation occurred. The alleged deficiency cited in (b) above does constitute a violation of Rules 10-5.081(1)(b), (2)(a)4.d., and (2)(b), Florida Administrative Code. However, in this instance, there are several mitigating circumstances. Foremost is the fact that Petitioner attempted on several occasions to obtain this information from another arm of HRS who had M. B. under its care prior to his admission to Petitioner's facility and had actually failed to complete M. B.'s Health Assessment form properly. Petitioner received many assurances from HRS that it would obtain and forward the information. HRS failed to do so. Moreover, after several years of M. B. living at the Warrington House and after several years of HRS care prior to his admission, common sense would dictate that M. B. is free of communicable diseases. Petitioner has in fact received confirmation of that fact from an examining physician who certified M. B. free of communicable diseases. 2/ As to (c) above, the evidence showed that the windows were only cracked and not broken. No evidence was presented as to the severity of the cracks. Cracked windows are not included in Rule 10A-5.022(a), Florida Administrative Code, which only addresses broken window panes. Moreover, cracked windows without proof of the severity of the cracks is not sufficient evidence of the lack of good repair or other hazardous conditions similar to those listed in Rule 10A-5.022(a), Florida Administrative Code. The Rule requires proof of the hazardous nature of such a condition. Cracked windows are not hazardous in and of themselves and no showing was made that these cracked panes constituted a hazard. Nor do cracked window panes standing alone constitute a violation of Rule 10A-5.022(d). The rule requires evidence that such cracked panes are unreasonably unattractive and no showing was made that the cracks were unreasonably unattractive. Likewise, the missing shower tile in (d) above fails to constitute a violation of Rule 10A-5.022(a) since the deficiency is not listed, and no showing was made that the missing tile constituted a hazardous condition. Similarly, the missing tile, by itself, does not constitute a violation under Rule 10A-5.022(d) since no showing was made that the missing tile was unreasonably unattractive. The same failure of proof occurs with the alleged deficiencies listed in (e), (f), (g), (h) and (i). See Rules 10A-5.022(c), (e) and (i). The alleged deficiency cited in (j) above does constitute a violation of 10A-5.023(9)(e). However, the violation was not repeated after October 1, 1987, the effective date of Section 400.414(2)(d), Florida Statutes. Ms. Reid conducted a second follow-up survey to the August 17 and 18 full survey when she performed the fire safety follow-up on January 21, 1988. All previously cited deficiencies had been corrected except for: Facility staff do not have documentation of being free of communicable diseases. The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable diseases. The following maintenance problems exist: broken or cracked window panes in windows of second floor exit door, both first floor bathrooms and resident room identified as W. S. A third follow-up was conducted by Ms. Reid on April 15, 1988. All the previously cited deficiencies had been corrected except for: The physical examination (Health Assessment) of resident identified as M. B. does not indicate that the resident is free from communicable disease. Broken or cracked window panes in windows of second floor exit door, both first floor bathrooms nearest kitchen, and resident rooms identified as C. W., W. S., and W. L.; Shower tile missing in second floor bathroom nearest exit door; Linoleum of first floor bathroom is loose as well as badly stained with cigarette burns; Hole in wall next to sink and toilet of second floor bathroom nearest exit door and square hole in wall of second floor blue bathroom. All of the alleged deficiencies cited in the January 21, 1988 follow- up and the April 15, 1988 follow-up survey were carried forward from the alleged deficiencies discussed above, cited in the October 23, 1987 follow-up survey. The same findings are made as to the alleged deficiencies which were carried forward. Only the physical health assessment of M. B. was cited by Respondent and shown to be a repeated deficiency since the information was not obtained by the established correction dates occurring after October 1, 1987. By the date of the hearing all the above alleged deficiencies had been corrected. Respondent notified Petitioner that it proposed to deny renewal of Petitioner's license to operate the Warrington House on December 23, 1987. The basis for the denial was Section 400.414(1) and (2)(d) which states: 400.414 Denial, revocation, or suspension of license; imposition of administrative fine; grounds. The department may deny, revoke or suspend a license or impose an administrative fine in the manner provided in chapter 120. Any of the following actions by a facility or its employee shall be grounds for action by the department against a licensee: * * * (d) Multiple and repeated violations of this part or of minimum standards or rules adopted pursuant to this part. The language of Subsection (d) was added to Section 400.414 F.S. on October 1, 1987. Prior to that date Respondent had no authority to take punitive action against the license of an ACLF licensee for multiple and repeated violations of Respondent's statutes and rules. The only action Respondent could take against a facility for such violations was in the form of a civil fine the amount of which could be raised if the violation was repetitive. Section 400.426, Florida Statutes. No multiple violations were shown by the evidence through the April 15, 1988 follow-up survey. More importantly, however, no multiple violations were shown by Respondent after October 1, 1987, the effective date of the statutory language at issue in this case. No showing was made by Respondent as to any legislative intent that the statute operate retrospectively. The statute operates only prospectively. Therefore, any alleged deficiencies cited prior to October 1, 1987 are irrelevant for purposes of imposing the punishment contemplated under Section 400.414, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services renew Petitioner's license. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 9th day of November, 1988.
The Issue Petitioner, Danny Rhoda, has applied for eligibility to take the competency examination for licensing as a fire protection system Contractor IV. The issue in this proceeding is whether Mr. Rhoda’s application should be approved.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that the Department of Insurance enter its Final Order denying Danny D. Rhoda’s application for eligibility to take the Contractor IV licensing examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of January, 1997. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1997. COPIES FURNISHED: Danny D. Rhoda Post Office Box 232 Fruitland Park, Florida 34731 Lisa S. Santucci, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Daniel Y. Sumner, Esquire General Counsel Department of Insurance & Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-3000
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Galilee was licensed by the Department. Galilee's last known address is 4685 Haverhill Road, West Palm Beach, Florida. Galilee is a lodging establishment, consisting of rental apartments. It was originally constructed in 1995 as an assisted living facility but, as a business decision, the owner subsequently converted it to rental apartments. The Department's inspector inspected the outside of Galilee on December 18, 2002, and again on January 17, 2003. The inspector found deficiencies at the first inspection, and at the second inspection three deficiencies remained uncorrected. The uncorrected deficiencies were (1) the current report of the annual inspection for the fire sprinkler system was not available; (2) fire extinguishers failed to have state certification tags affixed; and (3) no backflow prevention device on the exterior hose connection to the apartment building. The failure to have available the current report of the annual inspection for the fire sprinkler system was a critical violation. The deficiency was classified as a critical violation because the annual report is the only way that an inspector can ascertain that the fire sprinkler system is operational. The inspector requested the current annual report at the first visit but it was not available. The failure of the fire extinguishers to have state certification tags affixed was a critical violation. The deficiency was classified as a critical violation because the state certified tag verifies that an extinguisher is in proper working order and is being properly maintained. The failure to have a backflow prevention device on the exterior hose connection to the apartment building was not a critical violation. The backflow prevention device stops negative water pressure. At the first inspection, the inspector explained the violations to the owner and gave him a 30-day warning to have the violations corrected, advising the owner that she would return on January 17, 2003, for a follow-up inspection. The violations were not corrected at the follow-up inspection 30 days later. The evidence shows that all the violations were corrected within a month to a month and a half after the second inspection. Galilee provided mitigating circumstances for the violations not being corrected at the time of the second inspection. As to the deficiency regarding availability of the current report of the annual inspection for the fire sprinkler system, Galilee has a current report dated February 27, 2003. Also, Galilee suggests that the inspector did not request the report. The undersigned finds the inspector's testimony credible that she requested the report. Further, the evidence shows that Galilee confused the requested report with the report of the fire department's inspection. The inspector testified, and her testimony is found credible, that the report of the annual inspection for the fire sprinkler system is generated by a private company, not the fire department, because the fire department does not perform the inspection required for the requested report. As to the deficiency regarding tagging of the fire extinguishers, Galilee's owner purchased fire extinguishers from Home Depot and was not aware that the extinguishers were required to be tagged at the time of the first inspection. Subsequent to the second inspection, the fire extinguishers were tagged by the AAC United Fire and Safety Department, with which Galilee has a contract to inspect the fire extinguishers. As to the deficiency regarding backflow prevention device, it too was corrected subsequent to the second inspection. Furthermore, even though the deficiencies were corrected subsequent to the second inspection, Galilee began the process to correct the deficiencies after the first inspection. Galilee was not ignoring the deficiencies. The deficiencies were not timely corrected because Galilee's owner was attempting to obtain, whom he considered, the proper people to perform the tasks involved and have the tasks performed at a reasonable expense. No evidence of prior disciplinary action being taken against Galilee by the Department was presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants enter a final order: Finding that Galilee violated NFPA Life Safety Code 25, 1-8.2 and Food Code Rule 5-204.12. Dismissing the violation of Florida Administrative Code Rule 61C-1.004(5). Imposing an administrative fine of $1,500.00, payable under terms and conditions deemed appropriate. S DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. ____ ERROL H. POWELL 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 31st day of October, 2003.
