The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on June 25, 2007.
Findings Of Fact Petitioner is an African-American male who was hired by Respondent in approximately September 2006. When hired, the name of the facility was Greenville Hills Academy. The nature of Respondent’s business was a residential facility which housed boys under an apparent contractual arrangement with the Department of Juvenile Justice. Petitioner was hired by Respondent as a tester, teacher of life skills, and also was assigned library duties. On December 5, 2006, Petitioner received a memorandum from George Hare, Lead Teacher, entitled “Areas of Concern.” The memorandum addressed Respondent’s areas of concern regarding Petitioner, including problems with administering intake and exit tests to clients, as well as Petitioner’s attitude with co- workers. At some point, Petitioner was placed in a welding class. It is his understanding that, in the context of his teaching certificate, he is not permitted to teach outside his field. Petitioner was not certified in welding. Because of that, he refused to teach the welding class or to give grades to students in the class. On March 21, 2007, Petitioner received another memorandum from Mr. Hare. The memorandum notes that the grades in question were not welding grades but grades for the life skills portion of the welding class. The memorandum concludes by placing Petitioner on suspension for two days for failure to perform a duty or to follow instructions. On March 26, 2007, Petitioner received a Memorandum from Jeff McSpaddin, Director of Grants and Projects, notifying him that his employment was being terminated for insubordination and continued nonperformance of assigned duties and responsibilities. Petitioner asserts that he was not properly trained by Respondent and that white employees were properly trained. Other than Petitioner’s general statements, there is no specific evidence in the record as to who these other employees were, their positions, or what type of training they may have received that he did not. Petitioner also asserts that he was not provided with another staff person who could cover for him when he went to the restroom. Because of the nature of the facility, teachers were not permitted to leave students in a classroom even while going to the restroom, and needed a staff person to cover in that instance. As a result, Petitioner could not go to the restroom when needed. He does not know, however, if other teachers were assigned staff to assist them in this regard. Other than the general allegations that he believed white employees received training that he did not and were generally treated better than he was, Petitioner did not identify any similarly situated employees of Respondent outside of his protected class who were treated more favorably. Moreover, there is no evidence that anyone of another race replaced him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of May, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 9th day of May, 2008.
The Issue Whether the Agency for Health Care Administration found deficiencies at Petitioner's nursing home sufficient to support
Findings Of Fact Petitioner, Emerald Oaks, is a nursing home in Sarasota, Florida, licensed by and subject to regulation by the AHCA pursuant to Chapter 400, Florida Statutes. The AHCA conducted a relicensure survey of Emerald Oaks on February 29, 1996, and a follow-up survey on April 25, 1996. Both of these visits by the AHCA were unannounced. During the February survey, the AHCA reviewed seven randomly selected resident records. Eleven randomly selected resident records were reviewed by AHCA during the April 1996 follow-up survey. The sample of resident records reviewed in April was a totally different sample from those reviewed in February. Each alleged deficiency found by the AHCA during a survey is assigned a "tag" number, which relates to requirements imposed on nursing home facilities. As a result of the February survey, Emerald Oaks was cited for its failure to: (1) adequately assess residents for the potential development of pressure sores (Tag F272); (2) revise assessments as appropriate (Tag F276); (3) address pressure sores on care plans (Tag F279); (4) give appropriate care to residents to prevent pressure sores (Tag F314); (5) provide sufficient staff to meet needs of residents (Tag F353); and (6) comply with the minimum certified nursing assistant staffing requirement (N 062). The areas cited as deficiencies by the AHCA in the February 1996 survey of Emerald Oaks were not corrected at the time of the follow-up survey on the April 25, 1996. One area reviewed by the AHCA during the February survey and the April follow-up survey was staffing. With regard to staffing, applicable regulations require nursing homes to provide 1.7 hours of certified nursing assistant (CNA) hours per resident per day. To determine whether the CNA minimum staffing requirements are met, it is necessary to first obtain the total number of hours required. This is done by first multiplying the number of residents in the facility by 1.7. Next the total number of hours worked by all CNAs on the days in question must be determined. A nursing home is in compliance with the CNA minimum staffing requirements if the latter number is equal to or higher than the former number. In ascertaining whether the minimum CNA staffing requirement was met by Emerald Oaks, the AHCA relied on census data and time records of CNAs for the appropriate days that were supplied by the facility. Applying the appropriate formula to the relevant data, Emerald Oaks failed to meet the minimum CNA staffing requirements at the time of the February 1996 survey and the April 1996 follow-up survey. During the February 29, 1996 survey, the AHCA reviewed the CNA staffing requirements for January and February 1996. On nineteen days out of thirty-one days in January, Emerald Oaks failed to meet the minimum CNA staffing requirements. A review of the staffing for February 1996, revealed that Emerald Oaks failed to meet the CNA minimum staffing requirement on nineteen out of twenty-eight days. As a result of its review, the AHCA properly cited Emerald Oaks for having insufficient staff to meet the residents' needs. During the April 25, 1996 follow-up survey, again using records provided by Emerald Oaks, the AHCA properly found that the facility did not meet the minimum CNA staffing requirements. During the period from March 14, 1996 through April 27, 1996, there were twelve days that Emerald Oaks did not meet the minimum CNA staffing requirements. Another area addressed in the February survey and the April follow-up survey concerned the extent to which residents developed pressure sores. A pressure sore is a wound on the skin caused by pressure. These wounds are staged I through IV, with IV being the most severe. At Stage I the wound is usually a red area; at Stage II it is an open area; at Stage III the wound is deeper and involves muscle; and a Stage IV pressure sore involves bone, muscle, tissue and nerves. Federal Rule, 42 C.F.R. 483.25(c), requires that a nursing home resident not develop pressure sores unless the individual's clinical condition demonstrates that the sores were unavoidable. If a resident has pressure sores, nursing homes must provide treatment and services necessary to promote healing and prevent new sores from developing. Most pressure sores are avoidable and can be prevented, by diligent turning of residents, at least every two hours, to relieve pressure on a given area of skin. Ordinarily, if these procedures are followed, residents should not develop pressure sores unless the resident is debilitated, that is suffering from a serious disease such as cancer. The February 1996 survey and the April 1996 follow-up survey revealed a high incidence of pressure sores among the residents of Emerald Oaks. At the time of the February 1996 survey, twenty-two percent (22%), or nineteen Emerald Oaks residents, had pressure sores. Of these residents fourteen had pressure sores which were in-house acquired and for which there is no clinical explanation. This percentage was high when compared to the industry average of five percent (5%). At the time of the April 1996 follow-up survey, the percentage of Emerald Oaks residents who had pressure sores remained high, at twenty-one percent (21%). Among the records reviewed as a part of the February 1996 survey were those of Resident 1, Resident 3, and Resident 7. With regard to Resident 1, the records indicate that on January 1, 1996, when first admitted to Emerald Oaks, this resident had an open area on the left outer ankle. However, by February 29, 1996, Resident 1 had developed two more pressure sores while residing in Emerald Oaks. Based on the condition of Resident 1, these in-house acquired pressure sores were avoidable and could have been prevented with proper turning and repositioning of the resident. The February 1996 review of Resident 3's records indicate that this resident was admitted to Emerald Oaks on February 9, 1996 with a Stage II pressure sore on her right buttock. By February 22, 1996, the pressure sore had increased to a Stage IV. Given Resident 3's condition, the worsening of the pressure sore was avoidable with proper care of the resident. It should not have increased in severity in less than two weeks. According to records reviewed during the February 1996 survey, Resident 7 had no pressure sores when admitted to Emerald Oaks in November or December 1995. However, on January 13, 1996, a Stage III pressure sore was first observed on this resident and noted by Emerald Oaks staff. Although Resident 7 was at risk for pressure sores due to his decreased mobility and incontinence, with proper turning and repositioning of resident, the in-house acquired pressure sore was avoidable. The April 1996 follow-up survey also revealed that residents who had no pressure sores when admitted to Emerald Oaks, developed avoidable pressure sores while at the facility. Furthermore, at least one resident had one Stage I pressure area and one Stage II pressure sore at the time of admission to Emerald Oaks, but shortly after coming to the facility developed two more pressure sores. These two in-house acquired pressure sores, staged as a II and a III, were avoidable. In both the February and April surveys, the in-house acquired pressure sores were avoidable, notwithstanding the fact that many of the residents were a high risk for developing them. The high risk was related to conditions such as the residents' decreased mobility or immobility. Residents with these conditions required a great deal, if not total assistance, from the Emerald Oaks staff in moving from one position to another. Consequently, with proper turning and repositioning, these pressure sores were avoidable. While conducting the February 1996 and April 1996 surveys, the AHCA surveyors also reviewed the records of residents to determine the sufficiency of resident assessments and their care plans. The assessment process includes the following distinct components: the minimum data set (MDS), which is essentially a checklist of approximately 18 areas of potential concern. the RAPS (Resident Assessment Process) keys, which are cues found in the assessment instrument to make further inquiry into certain triggered areas to look for any problems for the resident. the RAPS, which is the process of using the RAPS key cues to assess whether there are problems for the resident. Care Plan, which is an individualized document which describes how the agency will care for the resident. In determining whether Emerald Oaks was in compliance with the prescribed assessment process, AHCA surveyors properly relied on information available in the residents' charts and documentation provided by staff of Emerald Oaks at the time of the surveys. In the February 1996 survey and the April 1996 follow- up survey, the AHCA found that Emerald Oaks completed the MDS function for most residents. However, Emerald Oaks failed to complete the RAPS process, by looking for the triggered cues from the MDS and pursuing appropriate follow-up questions as mandated by applicable federal forms. In the February 1996 survey and the April 1996 follow- up survey of Emerald Oaks, a review of the assessment process revealed that the required forms were generally incomplete, inaccurate, and not current or comprehensive. There were problems related to the assessment process in all seven of the files reviewed by the AHCA during the February 1996 survey. When the April 1996 follow-up survey was conducted, these problems had not yet been corrected by Emerald Oaks. Of the eleven files reviewed during the April 1996, follow-up survey, seven were deficient in the assessment process areas. During the February 1996 survey, the following deficiencies were revealed: (1) the RAPS for Resident 1 was incomplete and the Care Plan failed to address an identified medical condition; (2) the Care Plans for Residents 2 and 5 were unavailable; (3) the RAPS for Resident 3 was unavailable; (4) the Care Plan for Resident 4 was not updated to reflect significant changes; (5) the Care Plan of Resident 6 failed to identify goals and approaches which addressed an identified problem; and (6) the MDS and Care Plan of Resident 7 was not updated to address significant changes in the resident's condition. Deficiencies which existed at the time of April 1996 survey included the following: (1) Resident 1's assessment was not updated to reflect a Stage IV pressure sore; (2) the Care Plan of Resident 2 lacked measurable goals; (3) the Care Plan of Resident 3 was not updated to reflect significant changes; (4) Resident 6's Care Plan did not address pressure sores although the condition was addressed on MDS; (5) the RAPS for Resident 7 was incomplete and there was no documentation that weekly skin assessment were performed; (6) Resident 11's assessment was not updated to reflect the development of seven pressure sores, where none previously were present; and (7) the Care Plan goals for Resident 5 were global, not individualized. All of the violations for which Emerald Oaks was cited in the February 1996 and April 1996 surveys were Class III deficiencies with the exception of the F314 deficiency, which was a Class II deficiency. Tag 314 was deemed to be a Class II deficiency because of the number of residents who had developed pressure sores and the harm that they could cause residents. An additional consideration was that the in-house acquired pressure sores were avoidable. The AHCA surveyors conducting the February 1996 survey and the April 1996 follow-up survey properly considered all records that were available and provided on the dates the surveys were performed. Based on information made available by Emerald Oaks, the AHCA correctly found that the percentage of residents with pressure sores was higher than the industry average; the assessment process was deficient; and the required staffing ratio was inadequate and did not comply with applicable rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order issuing a conditional rating to the Emerald Oaks Care Center. DONE and ENTERED this 8th day of May, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of May, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire R. Davis Thomas, Jr. Qualified Representative Broad and Cassel Suite 400 215 South Monroe Street Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power, Agency Clerk Agency for Health Care Administration Suite 3431 Fort Knox Building Three 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent Whispering Oaks Estates Home Owners’ Association, Inc. (Whispering Oaks Estates HOA), failed to provide a reasonable accommodation for the late Charles A. Tipton’s disability in violation of Florida’s Fair Housing Act; and, if so, the relief that is appropriate.
Findings Of Fact Whispering Oaks Estates HOA governs Whispering Oaks Estates, a property located in Hernando County, Florida. Every owner of a lot in Whispering Oaks Estates is a member of Whispering Oaks Estates HOA. A document entitled “Amended Declaration of Covenants, Conditions and Restrictions” (the Covenants) sets forth several conditions governing lot owners’ use of their property and empowers Whispering Oaks Estates HOA to enforce those conditions. For example, the Covenants mandate that an “Architectural Control Committee shall be responsible for approving or rejecting house designs, size, elevation, color, and/or any other matters generally relating to protection of the overall aesthetic harmony of Whispering Oaks Estates.” Also, a lot owner cannot erect a fence, wall, antenna, or a cable television facility without prior approval from Whispering Oaks Estate HOA’s Board of Directors or the Architectural Control Committee. In addition, if a lot owner fails to care for his or her lawn, then the Board of Directors can hire a lawn-care service to cut and trim the lot owner’s lawn as necessary. Furthermore, the Covenants expressly prohibit garage sales, and lot owners’ ability to park boats, campers, trucks, pickups, trailers, or recreational vehicles in Whispering Oaks Estates is strictly regulated. The Covenants also provide that they can be amended by a two-thirds vote of the lot owners. Dr. Tipton holds a doctorate in management information systems from the University of Sarasota and has lived in Whispering Oaks Estates since August of 2005. Dr. Tipton resides in a section of Whispering Oaks Estates that consists of five townhomes, which are the property of the townhome owners. The five townhome owners jointly own a nearby parking lot, and each townhome owner has two spaces in the parking lot. Dr. Tipton’s townhome is approximately 130 feet from the parking lot. Dr. Tipton shared her townhome with her father, who suffered from Chronic Obstructive Pulmonary Disorder (COPD). As a result, Mr. Tipton needed supplemental oxygen and made use of a walker and a wheelchair. In addition, Dr. Tipton assisted her father with his daily activities as necessary. Because of Mr. Tipton’s condition, it was impossible for him to traverse the distance between the parking lot and his daughter’s townhome on foot. Therefore, Dr. Tipton would utilize a golf cart to transport her father between the parking lot and her townhome. Because of the golf cart’s size, Dr. Tipton needed five feet alongside the passenger’s side of her vehicle to remain unobstructed so that she could transfer her father between her vehicle and the golf cart. In October of 2013, Dr. Tipton wrote a letter to Nancy Frizelle, who was the president of Whispering Oaks Estates HOA at the time. Dr. Tipton’s letter had a subject line referring to “Disabled Access/Fair Housing Act,” and the body of the letter stated the following: Dear Mrs. Frizelle, The Homeowners Association has a valid purpose. It protects the homeowners so we can sell our properties located on a beautiful golf course. My goal is to attempt to obey all housing rules and deed restrictions to create a nice community. However, at no time, will I support any type of discrimination or harassment from other home owners over parking. That is what this letter is about as we wish to resolve this quickly without going to court. As you are aware, my house has shared designated parking. Each owner has 1/5 ownership of a parking lot that has two designated parking spaces per owner. My Dad resides with me as I am his caregiver. Under the law, the caregiver is considered the same as the disabled person. All of the owners have left the walkway open as some of the 5ft access is part of my actual parking space. The other footage is in Bonomo’s. None of us owners had a problem before keeping it open. The one lawsuit that would concern the Homeowners Association is under the Fair Housing Act. The attorney we consulted is a specialist in that area. Her name is Lynn Handshaw located in Tampa, Florida. She requested that this letter be written as the association is an indirect body that controls the parking lot. It was further explained to Lynn that our intent is not to file a lawsuit to the association because they do try to keep the community in good standing. However, we will if necessary. The private parking lot is owned by (5) five homeowners but it is required by the association that we park there. We are giving the association (10) ten days to notify Bonomo, Collazo, and Buckingham that Reeves will be painting the blue lines and white “no parking” on that five foot ADA access way. Each owner can give up (1) one foot to have that painted. According to my attorney, she does not care if the association or homeowners agree to this or not. She stated that if they don’t comply she will file a lawsuit against the association and only the homeowners, that don’t comply. She will do it on a percentage contingency. Please get with Mr. Murphy so that he fully understands that the 5 ft access is to remain unblocked and painted so the Sheriff’s Office can tow any vehicle that is blocking its’ path. If the association does not want to support my having ADA access then they can buy my house or place parking in front of my home like the other villas, at their expense. While this would ruin my view, it would give me quiet ownership without having to put up with the constant upheaval of parking. Please respond back to me within (10) ten days as to the associations [sic] intentions as we would like this to be resolved. Thanks for your attention to this matter. Respectfully, Dr. B.J. Tipton Ms. Frizelle responded to Dr. Tipton’s letter via a letter dated October 19, 2013, stating the following: Dear Ms. Tipton, Your letter entitled Disabled Access/Fair Housing Act was presented to the Whispering Oaks Estates Home Owners Association for consideration at its regular Board of Directors meeting on October 16, 2013. The Board’s position is quite simple: the Whispering Oaks Estates Home Owners Association has neither the jurisdiction nor the responsibility to police private property rights and or/disagreements. Therefore, we can initiate no action to help you solve the situation described in your letter. Very truly yours, Nancy Frizelle President Whispering Oaks Estates Home Owners Association On November 18, 2014, Dr. Tipton wrote a letter to Wayne Parlow, who was the president of Whispering Oaks HOA at the time. Dr. Tipton’s letter had a subject line referencing “Easement, Parking, Harassment” and stated the following: Dear Mr. Parlow and Board Members, As you are aware, The Department of Justice has the case concerning access to the parking lot under the disabilities and fair housing act. The department has a copious amount of pictures, documents, video recordings and the letter from Ms. Frizelle, past president. This is not a parking lot dispute as Ms. Frizelle and others had attempted to indicate. The case is simple. The Homeowners Association held themselves out to be an association but failed to perform. Reasonable accommodations were requested and denied. Harassment then started from various individuals. Discrimination is ugly. I am the youngest owner with a disabled father that is a permanent resident in the home that I have owned for ten (10) years. The Department of Justice has made it clear that my legal rights have been violated. All of these discussions are documented through e- mails. My case is in the queue. After the Department of Justice completes their job my civil attorney, in Tampa, will have the second lawsuit against the private owners, Arvin Franklin Marshall, Jr. (A.K.A. Lucky) and Michele Cerise Collazo Nelson Dorney that have denied access/blocked/ /verbally insulted/stalked and harassed me and/or my dad. Some of this has been documented with the Hernando County Sheriff [sic] Office. There are pictures and video recordings that have been forwarded. Lucky or Michele do not own any portion of that parking lot. Please remember, that my family or I have never known Lucky prior to him living with Michele. There has never been any conversations, initiated by me or my family, to Michele or Lucky. No one in my household has anything to do with the Collazo residence or Lucky or Michele. Lucky has sexually harassed me on several occasions and this has been reported. Recently, Lucky confronted me and my dad, on the golf cart, one day in the parking lot, when doing transfer. He stated he was going to put my dad “in the bottom of the Withlacoochee River with cement shoes.” We contacted the Hernando County Sheriff [sic] Office. Lucky or Michele are not allowed on any land that I own or partially own due to harassment. Kenneth and Rachael Reeves are the only 1/5th owners that will not be included as they know the law and have stated they have no intentions of breaking it. Roger Levesque, Jr. may possibly be included as well. Again, I do not know Roger and have never spoken to him. Roger bought 35000 Whispering Oaks Blvd and is Lorraine Collazo’s friend. He approached me one day, in the road in front of my home, threatening me over the parking lot. It is amazing that someone would threaten an owner that they have never spoken with concerning any issue. Furthermore, he never even tried to obtain facts prior to his threat. That also has been reported. The third lawsuit concerns the easement. In a previous letter this issue was mentioned. It has also been discussed verbally. This letter is to advise the association that I have retained Mr. Jacob I. Reiber of Wesley Chapel, Florida for the easement issue. He requested that this letter be sent. We will be seeking emergency mandatory injunctions to not have any further plantings in my secondary easement, if necessary. The homeowners association[] has been contacted on numerous occasions over the years that the easement needed to be cleared so that my mowers and golf cart could have access. The grapefruit/lemon tree and purple bush were all planted by the Bonomo[]s that own 35004 Whispering Oaks Blvd. The four wood slabs that create a planter box were installed by Collazo and Bonomo. Collazo owns 35002 Whispering Oaks Blvd. If these items were removed I probably would have access. These are all man made obstructions. This forces me to use the easement owned by the golf course, which is allowed, if an easement is obstructed, according to the restrictions. All legal cost for reimbursement will be included in this lawsuit. The association has thirty (30) days to get with Mr. Reiber concerning their intentions. Mr. Reiber will be in contact with Arvin and Michele to keep them from harassing and stalking me over the parking situation. Michele is Lorraine Collazo’s daughter that lived at 35002 Whispering Oaks Blvd. on and off throughout the ten (10) years that I have owned my home as a primary residence. It is dangerous for me to do my daily walks due to Lucky entering the neighborhood. Neither Arvin nor Michelle has a license to practice real estate or law but seem to dispense advice concerning ADA and the parking lot deed. Their opinion simply does not count as neither have legal ownership and are not a member of the association. This could be considered a felony. These cases are interrelated but will be kept separate. Please do not respond to me concerning this letter. Mr. Reiber has all the documents needed to discuss this situation. Please contact Mr. Reiber or have Mr. Murphy make contact concerning these issues. Our intention is to have all these issues resolved as quickly as possible. Have a Happy Thanksgiving! Respectfully, Dr. B.J. Tipton Mr. Tipton died in March of 2015. While his will nominates Dr. Tipton to act as the personal representative to dispose of his property if Mr. Tipton’s son is unable or unwilling to do so, Dr. Tipton testified during the final hearing in this matter that “an estate has not been opened.” Dr. Tipton asserted during the final hearing that she requested a “reasonable accommodation” (within the meaning of Florida’s Fair Housing Act) by asking the Whispering Oaks Estates HOA to keep the five feet alongside the passenger side of her truck unobstructed. Dr. Tipton also asserted during the hearing that she verbally communicated her reasonable accommodation request on multiple occasions to those in charge of Whispering Oaks Estates HOA. As a matter of ultimate fact, Mr. Tipton was handicapped/disabled and five feet of additional space adjacent to Dr. Tipton’s parking space was necessary in order for Mr. Tipton to use and enjoy Whispering Oaks Estates. As a matter of ultimate fact, Dr. Tipton proved by a preponderance of the evidence that she communicated a reasonable accommodation request via her October 2013, letter to Whispering Oaks Estates HOA. As a matter of ultimate fact, the Whispering Oaks Estates HOA had the authority to mandate that the five feet of space adjacent to Dr. Tipton’s parking space remain unobstructed. Dr. Tipton is seeking damages based on Whispering Oaks Estate HOA’s denial of her request for a reasonable accommodation. Specifically, she seeks to be reimbursed $53.50 for a camera that was used to monitor the parking lot that she and her neighbors jointly owned. Dr. Tipton also seeks to be reimbursed $125.00 for the cost of hiring a tow truck to remove a vehicle from her parking space. Finally, Dr. Tipton seeks $25,000 in punitive damages. As a matter of ultimate fact, Dr. Tipton failed to demonstrate that the costs associated with the camera and the towing service were related to the denial of a reasonable accommodation. Instead, it is more likely that those costs were associated with the alleged harassment described by Dr. Tipton. Indeed, Dr. Tipton testified at length during the final hearing about the alleged harassment and stated that the camera was intended to monitor whether anyone attempted to sabotage her vehicle.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. The Estate of Charles A. Tipton’s requests for damages and its Motion for Attorney’s Fees are DENIED. Whispering Oaks Estates HOA, Inc.’s Motion for Attorney’s Fees is DENIED. DONE AND ENTERED this 16th day of December, 2015, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 16th day of December, 2015. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) B. J. Tipton Estate of Charles A. Tipton 35006 Whispering Oaks Boulevard Ridge Manor, Florida 33523 (eServed) Michael Joseph Bayern, Esquire 570 East Long Beach Road St James, New York 11780 (eServed) David J. Murphy, Esquire Mander Law Group 14217 Third Street Dade City, Florida 33523 (eServed)
The Issue Whether petitioner should rescind its approval of prospectus amendments contained in amended prospectuses petitioner accepted for filing on June 23, 1988?
Findings Of Fact Respondent (Water Oak) manages a mobile home park in Lake County known as Water Oak Country Club Estates (the park). The previous owner envisioned phased development of an eventual total of 1,479 lots, and so stated in the original or "P" prospectus filed with petitioner's Bureau of Mobile Homes (the Bureau). The "P" prospectus contemplated a 587-lot "Golfside Villas" section when phase II of the park was developed. The "P" prospectus disclosed plans to build a separate recreational complex for Golfside Villas, leaving the main recreational complex for the exclusive use of other park residents. But the "P" prospectus stated: Water Oak Estate Mobile Home Park has a clubhouse, swimming pool, tennis courts and a shuffleboard center, which will be available for use by the park residents. The maximum number of lots that will use these shared facilities at the present time is 1,479, which is the total number of lots within the park. The Golfside Villas Section will use these facilities until November 1, 1987, at which time they will use their own facilities, and will no longer use Water Oak Estate facilities except by invitation from the Water Oak Residents' Association, or the Park Management. After Water Oak, Ltd. acquired the park, respondent or its agent filed an amended prospectus ("P86") with the Bureau. The "P86" prospectus differed from the "P" prospectus only to the extent required by the 1986 amendments to Chapter 723, Florida Statutes (1989), and did not alter disclosures regarding recreational facilities. A third Water Oak prospectus ("P2"), preserved the Golfside Villas concept and the idea of a separate recreational complex. As filed with the Bureau, however, the P2 prospectus stated: The recreational and other common areas discussed above are completed and available for use by the residents. The maximum number of home sites that are presently entitled to use these facilities is 590. FUTURE IMPROVEMENTS-- Water Oak Country Club Estates will build an additional clubhouse, a swimming pool, and a shuffleboard center, which will be for and in the Golfside Villas Section. Management may increase or decrease the size or modify the use of any of the shared facilities to serve the changing needs of the community, as determined by management. Petitioner's Exhibit No. 4, p. 7. In due course, the Bureau approved all three prospectuses, "P", "P86" and "P2", one after another. In approving prospectuses "P86" and "P2", the Bureau implicitly deemed them consistent with earlier approved prospectus(es). Because of considerations not pertinent here, Water Oak decided to abandon the idea of a discrete Golfside Villas section with its own exclusive recreational complex. Instead, it proposed, in developing phase II, to build the recreational complex contemplated in prospectuses "P", "P86" and "P2" (the original prospectuses) but to make both the phase II recreational complex and the original complex available to all residents of the park. Accordingly, Water Oak proposed amendments to the original prospectuses outlining its revised plans, and on April 16, 1988, filed them with the Bureau. Water Oak's cover letter explained: More specifically, a new clubhouse, heated swimming pool and shuffle board center open to all park residents will soon be available for use and so information concerning those facilities has been moved from the "Future Improvements" sections of these documents to the "Recreational and Other Common Areas" section. The proposed amendments are designed to make the "RECREATIONAL AND COMMON FACILITIES" section of all these prospectuses identical, and thus the existing versions of that section are deleted in their entirety in each prospectus and the new language substituted. . . . One other point is relevant to your consideration in this matter. The original owner of Water Oak Country Club Estates intended to designate a section of the park as the "Golfside Villas." However, no such section was ever developed ant the current owner has decided not to develop that section as such. Therefore, the Golfside Villas section of the park will not be created. Thus, all references to the Golfside Villas are now proposed to be deleted from all of the prospectuses in use in the park. No homeowner has leased a lot in an area designated as "the Golfside Villas," nor has any resident received any lease or other notification stating that his lot is in an area known as the Golfside Villas. Petitioner's Exhibit No. 3 (Emphasis in original.) Bureau personnel reviewed the amendments and approved the applications. Respondent's Exhibits Nos. 4 and After the approval, Water Oak gave prospective lessees amended P2 prospectuses, and entered into 60 or more leases with new residents to whom they had furnished amended prospectuses. Petitioner's Exhibit No. 7, a printed map of the park that is not part of any prospectus, labels a shaded portion in the northeast as "GOLFSIDE VILLAS AREA." Margerie Monski received a copy of the map on August 4, 1987, (T.411) before she and her husband leased a lot depicted on the unshaded portion of the map, in phase I. Respondent leased lot No. 2472 to Mr. and Mrs. Edward Reposa on April 4, 1988. T. 445; Petitioner's Exhibit No. 11. When respondent filed proposed prospectus amendments two days later, it had leased no other lot within the shaded area on Petitioner's Exhibit No. 7. Respondent leased lot No. 2510 to Mr. and Mrs. Alador Kurucz on April 20, 1988, and lot No. 2519 to Mr. and Mrs. Lloyd W. Wunder on June 8, 1988. Petitioner's Exhibits Nos. 12 and 13. Lots Nos. 2472, 2510 and 2519 all lie within the part of the park represented by the shaded area on Petitioner's Exhibit No. 7. But, as far as the evidence showed, none of the three lots' lessees has ever seen Petitioner's Exhibit No. 7 or any other map of the park on which Golfside Villas was depicted as a discrete section. No prospectus ever indicated that lots had been or were being leased in Golfside Villas. Unbeknownst to Water Oak, Mel Bishop Enterprises, Inc., the predecessor in interest who initially continued as park manager for Water Oak, filed a map similar to Petitioner's Exhibit No. 7 with the Bureau on October 27, 1987 (a prerequisite to its lawful use as advertising.) Petitioner's Exhibit No. 6. Lots depicted in the shaded area number far fewer than the 587 mentioned in the original prospectuses. The three original prospectuses, "P", "P86" and "P2", contain maps of phase I only. Front, back, left side and right side lot dimensions are listed for phase I, lot by lot. With respect to Golfside Villa lot dimensions, only the following appears: Front Left Side 1-587 - - - - 56 90 Petitioner's Exhibit No. 4. On April 6, 1988, respondent's principals were under the impression that no specific area within the park had ever been officially designated as Golfside Villas. Nothing in any of the materials they reviewed when respondent acquired the park located Golfside Villas at a particular spot on the land reserved for development in phase II. Testifying at hearing, petitioner's personnel conceded that respondent had no intention to mislead the Bureau with regard to any fact material to approval or acceptance of respondent's prospectus amendments. Nor did the evidence show that the fact that the respondent leased three lots depicted within the shaded area on Petitioner's Exhibit No. 7 would have been material in the Bureau's original decision to approve respondent's prospectus amendments.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss its notice and order of rejection. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 16, 17, 18, 26, 30, 31, 32, 35, 37, 38, 41, 45 and 49 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the pertinent part of the letter is quoted. Petitioner's proposed findings of fact Nos. 10, 15, 28, 33, 34, 39, 40, 42 and 50 pertain to immaterial matters. With respect to petitioner's proposed finding of fact No. 19, 24, 27, 43 and 44, no prospectus located a "Golfside Villas section of the park" at any specific place. Petitioner's proposed findings of fact Nos. 20, 21, 22, 23, 25 and 47 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 29, Mr. Stoppa made the allegation, but no prospectus located a "Golfside Villas section of the park" at any specific place. With respect to petitioner's proposed finding of fact No. 36, only two such leases were proven. With respect to petitioner's proposed finding of fact No. 46, see paragraph 10 of the findings of fact. With respect to petitioner's proposed finding of fact No. 48, it was not clear from the evidence what the basis was. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 21 22, 24, 28, 29, 30, 31, 34, 35, 37, 38, 42, 43, 44 and 45 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the number was 587. Respondent's proposed findings of fact Nos. 10, 25 and 39 pertain to immaterial matters. Respondent's proposed findings of fact Nos. 13, 14, 15, 16, 17, 18, 19, 20, 26, 27, 32, 33, 36 and 41 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 23, it is not clear what petitioner's policy was at any given time. With respect to respondent's proposed finding of fact No. 40, petitioner failed to prove its materiality. Copies furnished: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301 Daniel C. Brown, Esquire Katz, Kutter, Haigler, Alderman Davis, Marks & Rutledge, P.A. 215 South Monroe Street First Florida Bank Bldg., Suite 400 Tallahassee, FL 32301 E. James Kearney, Director Department of Business Regulation Florida Land Sales, Condominiums, and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
Findings Of Fact Trees of Florida, Inc. by its president, Jerry K. Rigsby, contacted Everglades Tree and Plant Farm, Inc. to purchase 30 live oak trees. Rigsby saw the size trees he wanted and requested Petitioner to sell him those trees. Petitioner refused to sell the trees desired because they had not been root pruned. Some 60 to 90 days to recover from root pruning are required before trees can be safely uprooted and replanted. Other live oaks that had been sold by Petitioner to another company, Swanson and Coleman, were on the premises, had been root pruned, and Respondent inquired if it could buy those trees. Petitioner contacted Swanson and Coleman who did not need early delivery and Petitioner told Respondent it would sell Respondent 30 of those trees on a cash only basis. Respondent agreed and sent his truck to pick up the trees. They had not yet been dug and Respondent was advised it would be several days before the trees could be loaded. When the trees were dug, Respondent appeared with $2000 cash and a check for the $1360 balance owed. Despite telling Rigsby the deal was strictly for cash, Beaty accepted the check and Respondent took away the trees. Respondent stopped payment on the check and complained to Petitioner that the trees were below the 16 to 18 feet height Respondent had contracted for. Petitioner had its bank check with the payor bank on whom the check was written and was advised Respondent had insufficient funds on deposit to honor the $1360 check. After some negotiations between the parties, Petitioner agreed to take back the 30 trees and refund Respondent's payment if Respondent would replant the trees and they all lived. Respondent never returned any trees or paid the $1360 balance claimed by Petitioner.
The Issue The issue is whether Respondent violated Section 112.313(6), Florida Statutes, during January through March 2003.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent George Blake (Mr. Blake) is subject to the Code of Ethics. Mr. Blake, at the time of the hearing, had served continuously as a town councilman of the City of Live Oak, Florida, for approximately 15 years. The City of Live Oak is a small North Florida town governed by a five-member City Council having one member designated by the Council as President. It has an elected Mayor who has no vote in Council matters. The Council governs Live Oak through a City Administrator. The Council has the authority to hire and discharge city employees although it generally defers to the City Administrator to accomplish those duties. The City Council of Live Oak, like governing bodies in many small towns, is more intimately involved in the day-to-day operations of the municipality than is the case in a large city. Michael Christensen (Mr. Christensen) resides in Umatilla, Florida, and resided there at all times pertinent to this case. In January 2003 he held a Building Code Administrator's license issued by the State of Florida and was a registered architect. He also held a general contractor's license. He had never before been a municipal employee at any municipality. Mr. Christensen was hired as the Building Official for the City of Live Oak by Myron Holmes, the Live Oak City Administrator. Mr. Holmes believed that Mr. Christensen was highly qualified for the job. Mr. Christensen began work on January 13, 2003. Willard Hewett, the Public Works Director for Live Oak, was Mr. Christensen's immediate supervisor. Mr. Christensen was hired pursuant to an agreement that he would work Monday through Thursday each week. According to the City Personnel Policy and Procedure Manual, all employees except police and fire personnel must work five days per week, eight hours per day. Only the Council could approve a variance and in the case of Mr. Christensen, the Council was never asked to approve this deviation from the Manual. Prior to Mr. Holmes' decision to hire him, Mr. Christensen met with the Council. The Council, including Mr. Blake, was aware that a condition of employment was that he be allowed to work a four-day week. Mr. Blake did not object to the four-day work week schedule that was proposed. The City Counsel made a unanimous recommendation to Mr. Holmes that Mr. Christensen be hired. A four-day work week was critical to Mr. Christensen's employment with the City until his house in Umatilla was sold. He was also finishing up some work in Umatilla. It is 150 miles from Umatilla to Live Oak. On January 14, 2003, Mr. Christensen began the review of plans submitted by Julie Ulmer for a house to be built for Mr. Blake. Ms. Ulmer is Mr. Blake's daughter. Mr. Christensen noted 26 items on the plans which did not comply with the Florida Building Code (FBC). The builder, Jeremy Ulmer, Ms. Ulmer's husband, resubmitted the plans. Mr. Christensen found additional deficiencies on the resubmitted plans. Mr. Christensen and Mr. Ulmer had a discussion with regard to the deficiencies in Mr. Christensen's office on February 4, 2003. Mr. Ulmer exhibited hostility toward Mr. Christensen. Mr. Christensen met twice with Gary Gill, the Professional Engineer who had "sealed" the plans. Eventually Mr. Christensen determined that, after modification, the plans met the FBC and, on February 7, 2003, he issued a building permit for the construction of the Blake residence. He also became aware that Mr. Blake was unhappy with him. During the time that Mr. Christensen served as Building Official he conducted plan reviews on a total of ten plans and, at least initially, rejected all ten. On Tuesday, February 11, 2003, at the regularly scheduled Council meeting, Mr. Blake attempted to cause the Council to consider Mr. Christensen's performance as Building Official. It is unusual for the performance of a city employee to be considered during a Council meeting, although not without precedent. Don Boyette, the president of the Council, recessed the meeting to February 18, 2003, when the matter of Mr. Christensen was to be discussed further. By Thursday, February 13, 2003, City Administrator Holmes was aware that Mr. Blake was angry with Mr. Christensen and believed he had embarked on a course of action designed to visit harm upon Mr. Christensen's employment status. City Administrator Holmes thought the matter had become, "extremely heated." At some point, Mr. Blake had stated to Mr. Holmes that the plan changes to his house had cost him a lot of money. Also on February 13, 2003, Mr. Blake attended a meeting of the Builders' Association of Suwannee County at the Farm Bureau Building and individual complaints regarding Mr. Christensen were made to him by Sam Carter, Lynn Fletcher, Dan Murray, and Harvey Carroll who are all involved in the construction business. On one other occasion he received a complaint from J.D. Brown who is in the construction business. The complaints against Mr. Christensen centered primarily around his attitude, and these complaints were legitimate. His ability to deal with builders in Live Oak was hampered by his imperious attitude. The prior building official was considered strict, like Mr. Christensen, but he was able to obtain compliance without greatly irritating people. This propensity to irritate people was observed by Chad Croft, the Live Oak Fire Chief. Chief Croft had for many years accomplished his Life Safety inspections on commercial buildings in company with the Live Oak Building Official. This was done as a matter of convenience to the person whose business was being inspected. He continued this practice when Mr. Christensen became the Building Official. However, after a few of these inspections he discontinued the practice because he objected to being present during Mr. Christensen's unpleasant interactions with contractors. Mr. Croft opined that Mr. Christensen lacked people skills and was harsh with people. On Friday, February 14, 2003, Mr. Christensen entered upon the property on which Mr. Blake's house was being constructed for the purpose of inspecting the footer, which is part of the foundation. He asked Pat Sura, the Suwannee County Building Official, to accompany him because he believed that Mr. Blake was seeking retribution because of the changes in the building plans. Mr. Sura had been a building official for many years and was more experienced than Mr. Christensen. Mr. Christensen and Mr. Sura both found the footer forms constructed on the Blake property to be deficient because of root obstruction. Mr. Christensen decreed that the roots would have to be removed before concrete could be poured. Mr. Sura thought that it would be permissible for the footer to be poured and the roots removed subsequently. Because Mr. Sura was present in an advisory capacity, it was Mr. Christensen's opinion that prevailed, based on FBC 23-1.2, which clearly says that vegetation must be removed before the footer may be poured. Mr. Christensen returned to his office to obtain his copy of the FBC and then returned to the building site. When he returned he found that Mr. Ulmer had come to the site. Mr. Ulmer was unhappy when he learned he could not pour the footers absent additional work. Mr. Ulmer said to him, "If you don't pass my inspection, there will be consequences." Ultimately, Mr. Hewitt authorized the contractor to pour concrete into the footer as scheduled. On Monday, February 17, 2003, Mr. Christensen met with City Attorney Ernie Sellers at his office. Also attending were Willard Hewett and Myron Holmes. Mr. Christensen stated that he believed Mr. Blake was trying to intimidate him. Although Mr. Blake had never spoken to Mr. Christensen about this matter, Mr. Christensen drafted a letter to the State Attorney requesting prosecution and a letter of guidance to the Council. He did not mail this letter after having been advised that the State Attorney was the incorrect venue for his complaint. On Tuesday, February 18, 2003, at the Council meeting which was a continuation of the February 11, 2003, meeting, referred to as a "recessed meeting," several people testified. Julie Ulmer, Tom Smith, who is an architect, and Sam Carter who is a draftsman, all complained about Mr. Christensen's performance. Prior to this time only a few people in the construction business, other than the Ulmers, had complained about Mr. Christensen to Mr. Hewitt. The complaints addressed to Mr. Hewitt were routine disagreements between contractors and Mr. Christensen, and Mr. Hewitt was concerned with Mr. Christensen's absence one day a week. Mr. Christensen solicited and obtained a letter of recommendation from Jimmy Worth who was building a large building that was being inspected by Mr. Christenson on a routine basis. This letter was presented to the Council during the "recessed meeting." Mr. Christensen spoke at the meeting and he and Mr. Blake had a heated exchange of words. During the meeting Mr. Blake stated that he did not believe that Mr. Christensen could work with people and that if he could get two more votes he would have Mr. Christensen fired. Despite this, both Mr. Hewett, Mr. Christensen's immediate supervisor, and Mr. Holmes, the City Administrator, remained satisfied with Mr. Christensen's performance. The day after the "recessed meeting," on February 19, 2003, Mr. Blake told City Administrator Holmes that he wanted Mr. Christensen to work a five-day work week, in accordance with the City Personnel Policy and Procedure Manual. Mr. Blake, having failed to have Mr. Christensen terminated by the Council, wrote the County Coordinator on February 21, 2003, and requested that Suwannee County building officials inspect the construction of his home pursuant to an existing inter-local agreement. This resulted in the county building official doing the inspection. All citizens of Live Oak are permitted to request that the Suwannee County building department inspect their construction and such requests are routinely granted. By February 21, 2003, Mr. Christensen had already drafted his ethics complaint. Mr. Blake sought a legal opinion from City Attorney Sellers, as to whether he had to abstain from any vote to discharge Mr. Christensen. In a letter dated February 28, 2003, Mr. Sellers correctly noted that Mr. Blake had a personal issue with Mr. Christensen related to the home Mr. Blake was having built and that Mr. Blake had received complaints from others addressing Mr. Christensen's performance. Mr. Sellers opined, "It is my opinion that firing or not firing the building inspector is not reasonably calculated to afford you any special private gain or loss and that there will be no conflict involved in your voting on the above state [sic] issue." At a meeting of the Council on March 11, 2003, Mr. Blake moved to abolish the City's building inspection activity and to contract with Suwannee County for the purpose of building inspections. This motion failed with three members voting in opposition and two in favor. Mr. Blake then moved to require Mr. Christensen to work five days a week, in accordance with the City Personnel Policy and Procedure Manual. This motion passed. The requirement to work a five-day week resulted in the constructive termination of Mr. Christensen because he could not comply with this requirement due to his personal financial situation. Accordingly, on March 17, 2003, Mr. Christensen submitted his letter of resignation. Mr. Blake put a copy of Mr. Christensen's letter of resignation in each councilperson's box, and the Mayor's box, and loudly announced that he was not through with Mr. Christensen and that he would sue him. Mr. Christensen, prior to his employment, and subsequently, has been on the Internet advocating for the removal of city councilmen who intimidate building officials. The record does not reveal why, but it is clear that Mr. Christensen was a pistol with a hair-trigger, waiting for an elected official to pull it. He found that official in Mr. Blake. It was proved by clear and convincing evidence that Mr. Blake had a personal vendetta against Mr. Christensen and that he used his position as a City Councilman to try to intimidate him. It was proved by clear and convincing evidence that Mr. Blake used his position to ultimately effect his resignation. It was also proved that there were others in the community who desired to have Mr. Christensen's employment come to an end, and that in part, Mr. Blake was representing their interests in his efforts to have Mr. Christensen discharged.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that George Blake did not violate Section 112.313(6), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of January, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Suite Plaza-01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 George W. Blow, III, Esquire Law Offices of George W. Blow, III 106 White Avenue, Suite C Live Oak, Florida 32064 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue For Case No. 01-1607: Whether the Agency for Health Care Administration (AHCA) is entitled to change Oak Terrace Specialty Care Center's (Oak Terrace's) license from a Standard to a Conditional license from February to May 2001 pursuant to various deficiencies alleged in its letter of February 22, 2001. For Case No. 01-1985: Whether AHCA is entitled to fine Oak Terrace $1,000 for a violation of Section 483.25(1)(a)- (m), Florida Statutes, and Rule 59A-4.107(5), Florida Administrative Code, upon proof of a Class III (Tag F309) deficiency as set forth in its April 23, 2001, Administrative Complaint.
Findings Of Fact AHCA is the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. Oak Terrace is a licensed nursing home located in Green Cove Springs, Florida. These cases arise out of surveys conducted on the facility in December 2000, January 2001, February 2001, and March 2001. A focal point of this case is to determine which alleged deficiencies constitute "new" as opposed to "uncorrected" deficiencies in sequence. AHCA conducted a complaint survey of Oak Terrace on December 19, 2000. A complaint survey is in response to a complaint. The subsequent December survey report, commonly referred to as a "2567 Report," is, by the agreement of the parties, one of the charging documents in this case. The December 2567 Report charges that Oak Terrace failed to provide care and services to one resident to allow her to attain or maintain her highest practicable well-being. The 2567 Report also charges that this deficiency violates 42 CFR Section 483.25, which is made applicable to Florida nursing homes by Rule 59A-4.1288, Florida Administrative Code. The December 2567 Report identifies the standard of care at issue as Tag F309. AHCA is required to rate the severity of any deficiency identified in a survey with a federal scope and severity rating and a "class" rating. It assigned the F309 deficiency from the December 2567 Report a federal scope and severity rating of "G," which is an allegation that the deficiency caused actual harm to the resident but was an isolated incident. AHCA also assigned the deficiency a Class III rating, which is an allegation that the deficiency presents "an indirect or potential relationship (threat) to the health, safety, or security of the nursing home residents." See Rule 59A-4.128(3)(b), Florida Administrative Code.1 AHCA conducted an annual survey of Oak Terrace from January 9-12, 2001. AHCA prepared a January 2567 Report after that survey was completed, which is also a charging document in this case. The January 2567 Report does not identify that there was any violation of Tag F309. However, it charges that Respondent failed to have a systematic methodology to provide low-functioning residents with a program of activities designed to meet their interests and well-being. The 2567 Report also charges that this deficiency violates 42 CFR Section 483.15(f)(1), and identifies the standard of care at issue as Tag F248. AHCA assigned this deficiency a Class III rating. On February 2, 2001, AHCA conducted a follow-up survey to both the December 2000 and January 2001 surveys to determine if the deficiencies identified in both of those surveys had been corrected. AHCA prepared two separate 2567 reports after the February 2002 survey was completed. These reports are also charging documents in this case. The February 2567 Report charges that Respondent again violated Tags F248 and F309, and that each of these new violations was a Class III deficiency. Because it found new violations of Tag F248 and F309 on February 2, 2002, AHCA determined that the deficiencies that had been identified in December 2000 and January 2001 were uncorrected and changed Respondent's licensure rating from "Standard" to "Conditional." AHCA conducted a follow-up survey to the February survey on March 22, 2001. The purpose of this survey was to determine if the deficiencies cited in February had been corrected. AHCA prepared a 2567 report after the March survey was completed. The March 2567 Survey Report is yet another charging document in this case. The March 2567 Report did not find any continuing violations of Tag F248, but alleged that there was a violation of Tag F309. The F309 deficiency was assigned a Class III rating. Based upon its belief that the F309 deficiency from February remained uncorrected, AHCA proposes to continue the Conditional rating that it had imposed in February and to impose a $1,000 fine against Oak Terrace for this "repeat" deficiency.2 On May 29, 2001, AHCA conducted a follow-up survey to the March survey to determine if the F309 deficiency had been corrected. AHCA determined that Oak Terrace was in substantial compliance with all applicable regulatory requirements and changed Oak Terrace's licensure rating back to Standard. The December 2000 Survey Tag F309 Tag F309 requires a facility to "provide [to residents] the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well- being, in accordance with the comprehensive assessment and plan of care." See 42 CFR Section 483.25. The December 2567 Report charges that Oak Terrace violated Tag F309 in its care and treatment of Resident 2. The allegations of inadequate care under Tag F309 of the December 2567 Report are set forth in an introductory paragraph followed by four separate numbered paragraphs. Respondent stipulated at hearing that it did not contest AHCA's ultimate determination that there was an F309, Class III deficiency in December 2000. However, Respondent does dispute the allegation of inadequate care contained in the introductory paragraph and the first numbered paragraph of that Tag, and AHCA's resultant claim, via the "G" scope and severity rating, that the inadequate care described in the first paragraph of the Tag caused "actual harm" to Resident 2. Resident 2 tragically had been placed in a trash bag as an infant. As a result, she suffered hypoxia (oxygen deprivation), resulting in a number of health problems, including cerebral palsy, blindness, inability to speak, lack of muscle control, and a seizure disorder. Despite three prescribed seizure medications, Resident 2 often had "breakthrough" seizures. Breakthrough seizures seem to be seizures occurring despite proper administration of correctly ordered medication. On the morning of November 29, 2000, Respondent sent Resident 2 to the hospital after she was noted to simultaneously manifest an elevated temperature of 103.6 degrees, seizure activity, and difficulty breathing. AHCA charged that Oak Terrace could have prevented Resident 2's decline and her hospitalization if Oak Terrace's staff had recognized earlier manifestations that Resident 2 was declining and, at that time, had notified Resident 2's physician. Because Resident 2 was noted to have a temperature of 102.4 degrees at 9:02 p.m., November 26, 2000, AHCA charged that Resident 2's physician should have been notified at 9:30 p.m., November 26, 2000 (roughly two and a half days before the facility actually notified him.) AHCA's expert nurse surveyor acknowledged that there is no nursing standard that requires a facility to notify a resident's physician when the resident has a temperature of 102.4 degrees. Instead, standard nursing practice provides that a physician should not be notified about an elevated temperature unless there are other symptoms present that indicate that the resident has experienced a change of condition. On November 26, 2000, Resident 2 had no other symptoms besides the elevated temperature. Staff provided her with Tylenol for her fever. Tylenol is an appropriate intervention. Resident 2's fever was reduced to 99.7, within two hours. AHCA also charged that Resident 2's physician should have been notified November 27, 2000, at 11:18 p.m., due to increased temperature. Nursing notes state that Resident 2 had a mild temperature of 100.8 degrees at that time. Those notes do not reflect that the temperature had been on-going from the previous night, nor do they indicate that Resident 2 had any other signs or symptoms that would indicate a change in her condition that required staff to notify her physician. The Resident was given fluids for her temperature, which is an appropriate intervention, and there was no further indication in the nursing notes that Resident 2 then experienced any further distress or sign of illness that night. Nancy Smith, R.N., AHCA's surveyor, stated for the first time at hearing that Respondent's staff also should have notified Resident 2's physician on the evening of November 27, 2000, because, since Resident 2 was fed through a gastrointestinal tube (g-tube), she felt the nurse should not have given the resident "extra" fluids without a physician's order for those fluids. Survey reports must be reasonably specific so that a Plan of Correction can be devised and accomplished by the facility and so that they can be checked up on by the Agency at the end of the time specified for correction. The December 2000, survey report does not charge that the facility had an obligation to obtain a physician's order prior to the administration of "extra" fluids or that the failure to notify Resident 2's physician caused Resident 2 to decline. Accordingly, it is inappropriate to use this charge to support a finding of a deficiency under Tag F309 in December.3 AHCA failed to provide any evidence that Resident 2 received fluids in excess of her assessed or ordered requirements. It is possible that the fluids she was given were early administration of flushes that were scheduled to be administered two hours later. There is no clarity on this issue. AHCA also asserted that Resident 2's physician should have been notified at 9:51 p.m., on November 28, 2000, when Resident 2 was noted to have a mild temperature of 100.2 degrees and also was noted to have "mild seizure activity," characterized by "rapid eye movement and upper extremity tremors," although the observed eye and body movements were consistent either with the resident's history of breakthrough seizures or her lack of muscle control. However, AHCA provided no evidence that the resident's fever and the seizure were related to each other or that they otherwise reflected a change in her condition which required notifying her physician. The appropriate nursing intervention for any resident who experiences a mild seizure is to allow the seizure to run its course, while monitoring the resident and protecting the resident from injury. In any case, nothing would have been done for Resident 2 with regard to evaluating whether her seizure medication needed to be changed without first doing lab work. Lab work would not have been done in the normal course of affairs until the following morning. Staff monitored Resident 2 throughout the evening of November 28, 2000, and no further seizure activity or any other type of distress was noted that would have required notification of the physician. It was also asserted that Oak Terrace should have notified Resident 2's physician at 6:00 a.m., on November 29, 2000, when staff noted that Resident 2's temperature was 100.8 degrees and the resident was noted to have "extra-ocular" movements. The noted eye movements were not consistent with seizures, but were consistent with the resident's on-going physical problems, and did not indicate a significant change of condition which would have required notification of her physician. However, at approximately 6:00 a.m., on November 29, 2000, staff noted for the first time that Resident 2 had airway congestion. The nursing staff gave Resident 2 Tylenol, continued to monitor her, and notified the oncoming nursing shift of Resident 2's condition. This is appropriate nursing practice. Around 7:00 a.m., Resident 2's temperature was read at 101 degrees. At 7:50 a.m., it was read at 103.6 degrees. At that time, Resident 2's oxygen saturation was tested and noted to be poor. Resident 2 also had labored breathing and seizure activity. She was given her scheduled administration of anti- seizure medication. At 8:05 a.m., staff notified Resident 2's physician of the three concurrent symptoms, and he ordered that Resident 2 be sent to the hospital. It would seem that Resident 2 was not ordered to the hospital due to her seizure activity, which was not remarkable, given her medical history. Apparently, her breathing difficulties and congestion, with the morning's elevated and now quickly increasing temperature, were the combined reasons staff phoned the physician and the physician ordered her to the hospital. AHCA contended that Resident 2 would not have experienced a decline from November 26, 2000, to November 29, 2000, that caused her to go to the hospital on November 29, 2000, if Resident 2's physician had been notified earlier and given an opportunity to order treatments for her. However, the only evidence offered in support of this conclusion was the testimony of surveyor Ms. Smith. She was accepted as an expert in nursing principles, practices, and procedures. However, she is not a physician, and her testimony in the disputed-fact hearing was only that there was a "possibility" that Resident 2's symptoms on the morning of November 29, 2000, could have been prevented by earlier notification of the physician, presumably between 7:00 a.m. and 8:05 a.m. (see Findings of Fact 17-31). She did not identify any intervention the physician might have initiated during that period of time. She did not identify a treatment that the doctor could have ordered that would have prevented Resident 2 from having to go to the hospital. When Nurse Smith interviewed Resident 2's physician as part of her survey investigation, she did not ask him if he could have done something for Resident 2 if the facility had notified him earlier.4 The evidence in this record does not support a finding that Resident 2 experienced "actual harm" as a result of any failure by Respondent to notify the physician earlier. At most, any failure to notify the physician presented a potential that Resident 2 could have been harmed. If a deficiency only presents a potential for harm to a resident, the Agency's assigned scope and severity rating of "G," is inappropriate. A severity rating of "D," which is defined as a deficiency which presents only the potential for causing more than minimal harm to a resident would be appropriate. The December 19, 2000, survey specifies January 19, 2001, as the date for correction. January 2001 Survey Tag F248 Tag F248 requires a facility to "provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and physical, mental, and psychosocial well-being of each resident." See 42 C.F.R. Section 483.15(f)(1). The January 2567 Report charges that Oak Terrace violated this regulation because it did not have a "systematic methodology" to provide an on-going program of activities for five residents (Residents 1, 4, 7, 11, and 15), who were deemed to be lower-functioning due to cognitive impairment and limited bed mobility. Cindy Adams, who testified about the January F248 deficiency, testified that records review, staff interviews, and observation did not reveal any resident care plans being implemented by staff. Respondent's witness, Alice Woods, an L.P.N. at Oak Terrace, and exhibits demonstrated that the facility had a systematic methodology for determining each resident's activities needs and for providing a program of activities to meet those needs as follows: Each Oak Terrace resident is assessed using the Minimum Data Set (MDS Assessment). This assessment is conducted at least quarterly for every resident. Based upon needs or problems that are triggered through that assessment, the facility's Activities Director determines whether or not a care plan is appropriate for a resident. If a care plan is needed, the Activities Director develops individualized activities calendars which are posted in each resident's room. Not all activities are provided by the Activities Director. Some are provided by other staff members. Appropriate activities for lower functioning residents can include reading to them, playing them audio tapes, employing sensory stimulation such as touching, or even playing games with them. AHCA offered no evidence to indicate that the facility failed to design care plans that included those types of activities for any of the five cited residents. AHCA did not provide any examples of a failure by Oak Terrace to provide a calendared activity to one of these residents. The activities calendars contain appropriate daily activities that staff are supposed to provide to the respective residents. After an activity is provided to the resident, the staff member who has provided the activity is supposed to mark the activity on the calendar with a highlighter. The surveyor was not aware of Respondent's use of the calendars. Staff did not point them out to her, and she did not see them during the survey. Therefore, she did not factor them into her allegation of a deficiency under Tag F248. The activities calendar system may be a record-keeping problem for AHCA surveyors and further notation in the care plans of the activities prescribed may be a good idea, but the evidence does not support any degree of a Tag F248 violation. Tag F309 Oak Terrace had been directed by AHCA to correct the December F309 deficiency within thirty days of December 19, 2000. The January 9-12, 2001, survey was an annual recertification of Oak Terrace. During that survey, the surveyors reviewed the files of 21 sampled residents to determine if the facility was substantially complying with all regulatory standards applicable to nursing homes, including those under Tag F309. The survey team found no violation of Tag F309. February 2001 Survey Tag F248 The February 2567 Report charged that Respondent violated Tag F248 by failing to provide adequate activities to Residents 2, 7, and 8, all of whom were deemed to be low- functioning residents due to cognitive impairment. AHCA abandoned its allegations relating to Resident 7 at hearing. The allegations related to Resident 2 assert that Oak Terrace failed to assess the resident's activities needs or provide her with any care plan for activities. However, Resident 2's activities calendars for January and February note one-on-one visitations, book club, and relaxation and stimulation. Resident 2 also had cognition and communication care plans that contained interventions relating to Spanish talking books and music because she spoke Spanish. This suggests that Resident 2's activities needs had been assessed and that a program had been developed for her. AHCA admitted that these activities are appropriate for low functioning residents. At hearing, AHCA's surveyor, Bettianne Stankus, stated she had observed Resident 2 banging on the table of her wheelchair during the survey (once while out of her room and shortly afterwards in her room) and that the facility had violated Tag F309 because it had failed to provide Resident 2 with an activity that caused her to stop the banging. Whether this testimony was directed to showing that a pre-assigned activity would have prevented this behavior, which could evidence the resident's frustration with inactivity when no activities were assessed or provided, or was intended to show that a distracting activity should have been provided, as an intervention, is not entirely clear. The witness conceded that a toy had been given to Resident 2 when she returned to her room. The banging was not demonstrated to be an ongoing problem that required a care plan, and the surveyor acknowledged that there was no activity which would have altered the behavior. In any case, this charge was not recorded in the February 2567 Report, so it should not be considered as part of the deficiency in February.5 AHCA asserted that Respondent failed to provide adequate activities for Resident 8 because the surveyor could not find evidence in the "one-on-one books" provided by staff that staff had conducted one-on-one visits with Resident 8, four times a week, as required by the Resident's activities care plan. Nurse Adams testified that she had been told by staff that only a single one-on-one visit was occurring per week, due to lack of staff.6 AHCA's surveyor was not aware of, and did not consider, Resident 8's activities calendar before making her allegation of a deficiency. See, supra. However, Resident 8's activities' calendar for January and February, produced by Nurse Woods, specified a goal of four, one-on-one visits per week. They also indicated one-on-one visits up to six times a week had occurred during that time period. Nurse Woods' testimony confirmed this, and the hearsay allegation of insufficient staff is therefore not credible or proven. After the survey, Oak Terrace's personnel reassessed Resident 8 and determined that four, one-on-one visits per week were not needed to meet the resident's activity needs. Ms. Adams acknowledged that there was no potential for harm to Resident 8 if, after the survey, the facility re-assessed the resident and determined that fewer one-on-one visits per week were necessary and the resident was, in fact, getting those visits. Although the undersigned interprets this testimony to refer to a lesser number of necessary visits after such a reassessment, it also suggests that those visits made in January and February were sufficient. Therefore, the F248 charge as to Resident 8 was not proven. Tag F309 The February 2567 Report charges that Respondent violated Tag F309 in its care and treatment of Residents 1, 4, 6, and 10. It does not name Resident 2 in this Tag. See Findings of Fact 45-50. AHCA presented no evidence at hearing to support its charge of inadequate care of Resident 1. Resident 4 had a scalp condition that had been a problem since her admission to the facility ten years earlier when her hair reached her knees. For some time, the facility had treated the condition with Nizoral, a medicated shampoo, with some success, but the condition would periodically re- appear on Resident 4's head. In February 2001, the surveyor observed that an area of Resident 4's scalp near her left ear was yellowish, crusty, and flaky. In testimony, the surveyor acknowledged that Respondent was treating the area with a medicated shampoo, but she concluded that the treatment was ineffective because of the condition of the area she observed. In her opinion, the facility should have notified the Resident's physician about the ineffectiveness of the shampoo it was using to treat the area, presumably so that he could prescribe another treatment. The cited F309 deficiency was based on this alleged "failure to notify the physician." Medical records maintained by Oak Terrace to monitor Resident 4's scalp condition reflected that, during the months of December 2000, and January 2001, her scalp condition was chronic because it would periodically appear and disappear, every few days, even with treatment. A weekly skin assessment sheet also noted that, on January 27, 2001, staff had identified the area that was observed by the surveyor. The physician was notified about the area and saw the resident the following day. In his progress note, the physician directed the facility to continue use of the Nizoral shampoo. AHCA's surveyor did not identify another treatment that could, or should, have been used in place of the medicated shampoo. It is not the surveyor's duty or that of the facility to second-guess the attending physician. In fairness, however, the surveyor was not aware, before deciding on February 2, 2001, that the physician should have been notified of the alleged ineffectiveness of the Nizoral, that, in fact, Resident 4 had been so recently examined by her physician, on January 28, 2001, or that the physician had ordered continued use of Nizoral in his progress note. The evidence failed to establish that Resident 4 was deprived of any necessary care or service to maintain her highest practicable well-being, so as to warrant an F309 Tag. Resident 6 could not take foods or fluids orally and was fed through a g-tube. However, two orders on her medication administration sheet indicated that she was to receive Zinc and Vitamin C orally (by mouth). The resident also had two orders for provision of fluids through her g-tube (900 cc. and 1000 cc. respectively, and totaling 1900 cc.) The surveyor believed these two orders could result in Resident 6 receiving more fluids than her assessed needs. AHCA cited the facility for a deficiency under Tag F309 because if staff followed the orders they might give the resident medications and fluids that could cause her harm. However, AHCA's surveyor acknowledged that she could not describe any harm that could have occurred to Resident 6 by virtue of the fluid orders. The surveyor's concerns with the oral medications included possible aspiration. The AHCA surveyor acknowledged that any nurse who reviewed the resident's medical chart would see that the resident took food and fluids through a g-tube, and that she did not see any staff member offer oral medication to the resident. The surveyor's concern was that contradictory records, while not necessarily dangerous in the hands of a facility nurse on a standard shift, still might create a hazard where an agency (temporary) nurse filled-in for regular staff, but she failed to provide any information regarding the resident's assessed fluid needs that would justify her concern that combining the two fluid orders for 900 cc. and 1000 cc. might provide the resident with excessive fluids. She conceded that because the resident had no medical conditions that would indicate that her fluids should be restricted, probably no harm could come to the resident even if 1900 cc. were administered. Moreover, Oak Terrace established that Resident 6 did not have the orders for fluid administration that the surveyor contended she had in the February 2001 survey. Prior to that survey, the facility evaluated Resident 6's fluid needs and obtained a physician's order indicating that the resident was to receive 2250 cc. of fluid per day. That order also provided that Resident 6 was to receive 100 cc. of water before and after her medications, 10 cc. of fluid with each medication she received, and 100 cc. of fluid during each tubing change. These were the orders for fluid administration in effect for the resident at the time of the survey, not the ones cited by the surveyor. The undersigned has to wonder if Resident 6 was supposed to be receiving 2250 cc. of fluid daily, at the time of the February 2001 survey, if the two orders cited by the surveyor could have misled facility personnel into giving less fluid than Resident 6 was supposed to get, but no evidence to that effect was presented. Assuming arguendo that AHCA established any type of deficient practice under Tag F309 with regard to Resident 6, it only involved a failure by Respondent to maintain correct documentation of physician's orders for Resident 6, and the Tag for improper records had not been cited in the December 2000 survey. Resident 10 was re-admitted to Respondent facility in December 2000, after spending time in the hospital. On her re- admission, she weighed seventy-nine pounds and had one pressure sore on her coccyx and one on her heel. Respondent's dietician evaluated her and, among other dietary recommendations, recommended lab tests and consideration of the use of Procalamine, a dietary supplement, to promote weight gain and assist in the healing of Resident 10's pressure sores. On December 11, 2000, a medical physician issued an order to implement the dietician's recommendations. During the February 2001 survey, AHCA's surveyor could not find any evidence that the facility had followed through with the physician's order in either December 2000 or January 2001, or any evidence that the order had been discontinued. She contended that the facility's failure to follow the physician's order had placed Resident 10 at risk for continued weight loss and inadequate protein stores necessary to promote healing of the pressure sores. She cited the facility for a deficiency under Tag F309. However, the surveyor acknowledged at hearing that the alleged deficiency involved an issue of dietary care which was more appropriately covered by the dietary standards of Tag F325. Oak Terrace provided other interventions to Resident 10 to promote weight gain and healing of her pressure sores. Between December 11, 2000, when the physician wrote the order, and December 25, 2000, Resident 10 gained seven pounds. That weight gain put her at her usual body weight as of December 25, 2000, and she maintained her usual body weight as of the February 2001 survey. Resident 10's pressure sores began to progressively heal so that the area on her coccyx was completely healed by December 28, 2000, and the area on her heel was completely healed by January 3, 2001. Oak Terrace advanced the defense that due to the weight gain and the complete healing of Resident 10's pressure sores, and because implementation of the Procalamine treatment would have involved use of an invasive intravenous feeding line, the December 11, 2000, physician's order was not carried forward to the Resident's January or February 2001, physician's order sheets. Technically, the physician's order should have been fulfilled or carried forward on the charts until discontinued. Still, failure to do this was not demonstrated to be either actual or potential harm to Resident 10, under the circumstances. The evidence as a whole failed to establish that Resident 10 was deprived of any necessary care or service that prevented her from achieving her highest practicable well-being. Rather, the evidence demonstrated that Resident 10 experienced steady and desired weight gain and pressure sore healing after her return from the hospital, on or about December 11, 2000, that she was restored to normal weight as of December 28, 2000, and that her pressure sores were completely healed by January 3, 2001. March 2001 Survey Respondent did not dispute AHCA's allegation that there was a Class III deficiency in March 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Agency for Health Care Administration enter a Final Order revising the December 19, 2000, 2567 Report by deleting the findings of paragraph 1 of Tag F309; revising the January and February 2001, 2567 Reports by deleting any deficiencies described under Tags F248 and F309; issuing a Standard rating to Oak Terrace to replace the previously issued Conditional rating that ran from February 2, 2001 until May 29, 2001; and dismissing the Administrative Complaint which seeks to impose a $1000 fine against Oak Terrace. DONE AND ENTERED this 6th day of May, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 6th day of May, 2002.
