The Issue Whether Charles River Laboratories, Inc.'s (CRL) applications for permits for its primate facilities on Raccoon Key, Key Lois, and Summerland Key should be granted and, the conditions, if any, that should be attached to the permits.
Findings Of Fact THE PARTIES Charles River Laboratories (CRL) is a corporation that breeds rhesus monkeys on two offshore islands in the Florida Keys (Key Lois and Raccoon Key) and has a land base on Summerland Key.1 The Florida Game and Fresh Water Fish Commission is the agency of the State of Florida authorized to exercise the executive and regulatory powers of the State with respect to wildlife and fresh water aquatic species. Article IV, Section 9 of the Florida Constitution provides that authority as follows: There shall be a game and fresh water fish commission, composed of five members appointed by the governor subject to confirmation by the senate for staggered terms of five years. The commission shall exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, except that all license fees for taking wild animal life and fresh water aquatic life and penalties for violating regulations of the commission shall be prescribed by specific statute. The legislature may enact laws in aid of the commission, not inconsistent with this section. The commission's exercise of executive powers in the area of planning, budgeting, personnel management, and purchasing shall be as provided by law. Revenue derived from such license fees shall be appropriated to the commission by the legislature for the purpose of management, protection and conservation of wild animal life and fresh water aquatic life. Curtis Kruer resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer lives within a thirty minute boat ride of Raccoon Key and Key Lois. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer considers his ability to use the waters in the vicinity of Raccoon Key and Key Lois to have been diminished as a result of what he perceives to be a threat to his safety and the safety of his clients posed by the free ranging monkeys on these two islands. Mr. Kruer has standing to challenge whether the subject permits protect the public safety. CRL’S POSSESSION OF WILDLIFE CRL established its monkey colony on Key Lois in 1973. It thereafter established its colony on Raccoon Key in 1976. CRL obtained its first license to possess wildlife from the Florida Game and Fresh Water Fish Commission (Commission) in 1973, and has received annual licenses ever since. These annual permits have been issued pursuant to the provisions of Section 372.921, Florida Statutes. Raccoon Key, Key Lois, and Summerland Key are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk’s Channel, which is in the Atlantic Ocean. Raccoon Key is located in the Great White Heron National Wildlife Refuge approximately three miles north of Cudjoe Key in the Gulf of Mexico. The waters surrounding Raccoon Key and Key Lois are relatively shallow. There is a great deal of boating activity in the vicinity of both islands. CRL does not have an accurate count of the number of monkeys on either Key Lois or Raccoon Key and it does not maintain an accurate inventory of its monkeys. CRL’s best estimate at the time of the formal hearing was that there were approximately 200 free ranging monkeys on Key Lois and approximately 1,000 free ranging monkeys on Raccoon Key. The facility on Summerland Key is utilized for shipping and receiving, and no monkeys are permanently housed at that facility. CRL tattoos its adult monkeys, but it does not tattoo or otherwise mark its subadult monkeys. It is difficult to establish ownership of a monkey that has escaped and has been recaptured if the monkey has not been tattooed or otherwise marked. The Commission has reasonably determined that CRL should be required to keep an accurate inventory of the monkeys it possesses and that it should be required to mark for identification by tattoo, computer chip, or otherwise its monkeys that are one year old or older. An accurate inventory will assist CRL in knowing when a monkey is missing. Marking its monkeys will enable CRL to identify an escaped monkey after it has been caught. The free range monkeys on Raccoon Key and Key Lois are primarily used for breeding and are generally older monkeys that have lived in a free range society all of their lives. These free range monkeys have formed active social groups. CRL sells monkeys for use in medical research for numerous diseases and conditions affecting humans, such as osteoporosis, diabetes, Alzheimer’s disease, and AIDS. CRL’s monkeys have been isolated from human contact and are free from disease, including the Herpes B Virus. CRL’s monkeys are a valuable resource for medical research. CRL located its monkey colonies on Key Lois and Raccoon Key with the expectation that the location of the monkeys on these offshore islands would help keep the monkeys free from disease. CRL is licensed by the United States Department of Agriculture (USDA)as a dealer under the Animal Welfare Act, 7 U.S.C. 2131, et seq. CRL is prohibited by its registration under the Animal Welfare Act to sell its animals as pets or to any entity that has not been licensed either as a dealer or as a research facility pursuant to the Animal Welfare Act by the USDA.2 PRIOR CONSENT AGREEMENTS To settle a dispute with the Florida Department of Environmental Protection’s predecessor agency (the Florida Department of Environmental Regulation) CRL committed to eliminate free-ranging animals from Key Lois by the year 2003 and from Raccoon Key by the year 2008. CRL has begun to eliminate free range animals from both islands pursuant to that agreement. To settle a dispute with the Trustees of the Internal Improvement Fund filed in the Circuit Court of the Sixteenth Judicial Circuit in and For Monroe County (Case 86-190-CA-13), CRL agreed to cease its operations on Key Lois and convey title to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key no later than December 31, 2024, to the United States for inclusion in the National Wildlife System. THE APPLICATION CRL is the applicant for the permit that is the subject of these proceedings. Paul Schilling, D.V.M., has been the director of CRL’s monkey breeding activities in the Florida Keys since 1983. The permit that immediately preceded the permits at issue in this proceeding was issued by the Commission with an effective date of issuance as June 29, 1994. The date of expiration was July 4, 1995. On June 8, 1995, the Commission mailed to CRL a written renewal notice. The Commission’s policy is to accept as timely renewal applications for up to thirty days following the stated expiration date of the former permit. Under that policy, CRL timely filed the applications for the subject permits (one for Key Lois, one for Raccoon Key, and one for Summerland Key). The initial renewal application was filed after July 4, 1995, but within the thirty day grace period. Because the applications were submitted without the signature of a representative of CRL, the applications were returned to CRL for Dr. Schilling’s signature. Consistent with its practice, the Commission accepted the applications after they were signed and resubmitted as applications for renewal of the existing permits even though the completed applications were not received until July 24, 1995. The Commission’s action in treating the applications as renewals is not explicitly authorized by rule, but it is consistent with the Commission’s established policy. Under Commission policy, while a license renewal is being processed, the facility is still under license and the renewed permit is issued retroactive to the expiration date of the previous permit so that there is no gap in licensure. Under Commission policy, CRL remains a licensed facility pending the outcome of this administrative proceeding. CRL’s application states on its face that the “Company breeds Rhesus monkeys, Macaca mullata for sale to commercial laboratories.” This activity is described as being “COMMERCIAL ACTIVITY.” CRL captures most of the younger animals for sale or placement in captive breeding facilities. The application for Raccoon Key required the applicant to provide the “exact number by species” of wildlife to be possessed”. In response thereto, CRL provided the following: “Approximately 2,000 Rhesus Monkeys (Macaca mullata) animals are free range and group housed on an island off the Florida Keys (Raccoon Key).” The amount of the application fee was $25.00, the amount charged for eleven or more animals. The application for Key Lois also required the applicant to provide the “exact number by species” of wildlife to be possessed.” In response thereto, CRL provided the following: “Approximately 1,500 Rhesus Monkeys (Macaca mullata) animals are free range and group housed on an island off the Florida Keys (Key Lois).” The amount of the application fee was also $25.00, the amount charged for eleven or more animals. The application for Summerland Key was for “Holding of 0 - 8 Rhesus under clinical care." The Commission accepted and processed CRL’s application consistent with its established policies. THE APPLICABLE STATUTES Section 372.021, Florida Statutes, provides as follows: The Game and Fresh Water Fish Commission may exercise the powers, duties and authority granted by s. 9, Art. IV of the Constitution of Florida by the adoption of rules, regulations, and orders in accordance with chapter 120. Section 372.921, Florida Statutes, provides, in pertinent part, as follows: In order to provide humane treatment and sanitary surroundings for wild animals kept in captivity, no person, firm, corporation, or association shall have or be in possession or, in captivity for the purpose of public display with or without charge of for public sale any wildlife, specifically birds, mammals, and reptiles, whether indigenous to Florida or not, without having first secured a permit from the Game and Fresh Water Fish Commission authorizing such person, firm, or corporation to have in its possession in captivity the species and number of wildlife specified within such permit; however, this section does not apply to any wildlife not protected by law and the regulations of the Game and Fresh Water Fish Commission. Section 372.922, Florida Statutes, provides, in pertinent part, as follows: It is unlawful for any person or persons to possess any wildlife as defined in this act, whether indigenous to Florida or not, until she or he has obtained a permit as provided by this section from the Game and Fresh Water Fish Commission. * * * (4) Any person, firm, corporation or association exhibiting or selling wildlife and being duly permitted as provided by s. 372.921 shall be exempt from the requirement to obtain a permit under the provisions of this section. CRL’s sale of monkeys to commercial laboratories is a “public sale” within the meaning of Section 372.921, Florida Statutes. CRL’s monkey breeding operation in the Florida Keys requires a permit from the Commission pursuant to Section 372.921, Florida Statutes. THE APPLICABLE RULES Chapter 39-6, Florida Administrative Code, has been duly adopted by the Commission and is intended to implement Sections 372.921 and 372.922, Florida Statutes. The title to this chapter, “Wildlife as Personal Pets.” While this title is misleading, CRL knew that its operations were regulated by these rules of the Commission. Rule 39.6.0011, Florida Administrative Code, pertains to the possession of wildlife in captivity and provides, in pertinent part, as follows: Except as otherwise provided by this Title, no person shall possess any native or non-native wildlife in captivity except as authorized by permit issued in accordance with ss. 372.921 or 372.922, F.S., and as provided in this chapter. The provisions of this chapter shall not apply to entities operating solely as research facilities which are registered and regulated as such in accordance with Animal Welfare Act (7 U.S.C. 2131 et seq.) and regulations promulgated thereunder. Rule 39-6.002(1)(b)9, Florida Administrative Code, classifies macaques (genus Macaca) as Class II wildlife, which are wildlife “considered to present a real or potential threat to human safety." See, Section 372.922(2)(b), Florida Statutes. Under Rule 39-6.0023, Florida Administrative Code, Class II wildlife are required to be caged or, if unconfined, are required to be maintained under rigid supervision and control, so as to prevent injuries to members of the public. Rule 39-5.004(5), Florida Administrative Code, provides the following criteria pertinent to this proceeding:: The severity of the conduct; The danger to the public created or occasioned by the conduct; The existence of prior violations of ch. 372, F.S., or the rules of the commission; The length of time a licensee or permittee has been licensed or permitted; The effect of denial, suspension, revocation or non-renewal upon the applicant, licensee, or permittee’s existing livelihood; Attempts by the applicant, licensee or permittee to correct or prevent violations, or the refusal or failure of the applicant, licensee, or permittee to take reasonable measures to correct or prevent violations; Related violations by an applicant, licensee or permittee in another jurisdiction; The deterrent effect of denial, suspension, revocation or non-renewal; Any other mitigating or aggravating factors. The provisions of Rule 39-5.004(5), Florida Administrative, are the duly adopted rules of the Commission providing permitting criteria and those provisions were applied by the Commission in processing the subject permits. THE CHALLENGED PERMITS AND ADDENDUM On March 29, 1996, the Commission issued its “Notice of Intent to Issue Renewal of a Permit to Possess Wildlife for Exhibition or Public Sale with Addendum” that provided, in pertinent part, as follows: This is a notice of intent to renew the permit to authorize Charles River Laboratories, Inc. (CRL), to possess for breeding and sale, sub-human primates on Key Lois and Raccoon Key in Monroe County, Florida, in accordance with Section 372.921, Florida Statutes, and Rule 39-6, Florida Administrative Code, consistent with the following Addendum to enhance public security and prevent escapes of primates: GENERAL FINDINGS The water surrounding Key Lois and Key Raccoon (sic) and the remote location of the islands were once believed to constitute an adequate barrier to prevent escape of primates from the islands and to prevent interference with the primate population by unauthorized persons. However, primates have escaped (or have been removed without CRL’s authorization) from the islands, and the islands are not secure from those who may seek to trespass or enter upon them. Accordingly, the Commission finds that water alone is no longer an adequate barrier to prevent escape of the resident primates and to prevent entrance upon the islands by unauthorized persons. Therefore, affirmative security measures are required for public safety. CRL is subject to a Petition for Appeal of Development Order in the case of The Department of Community Affairs v. Charles River Laboratories, Inc., et al., Case No. 96-1405DRI, FLAWAC APP-96-003 (Florida Land and Water Adjudicatory Authority Commission), which asserts that the continued use of Raccoon Key and Key Lois as a primate facility will adversely impact the quality of nearshore waters, mangroves, seagrass beds and other marine resources; and therefore, the facility is inconsistent with the Principles for Guiding Development for the Florida Keys Area of Critical State Concern. The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida has filed a Motion to Enforce a Consent Final Judgment in the case of Charles River Laboratories, Inc. v. Trustees for the Internal Improvement Trust Fund. Case No. 86-190-CA-13. The Commission shall fully coordinate and cooperate with the Department of Community Affairs and the Department of Environmental Protection in their efforts to resolve the above-cited actions. ADDENDUM Special Permit Conditions as to Key Lois only: CRL shall eliminate all free-ranging primates from Key Lois no later than December 31, 1996. Special Permit Conditions as to Raccoon Key only: CRL shall eliminate not less than thirty-three percent (33%) of free-ranging primates from Raccoon Key by December 31, 1996, shall eliminate not less than sixty-six percent (66%) of the total free-ranging primates from Raccoon Key by December 31, 1997, and eliminate all remaining free- ranging primates from Raccoon Key by December 31, 1998. Special Permit conditions as to security on Key Lois and Raccoon Key: CRL shall institute random water security patrols of the islands during non- work hours; CRL shall provide cellular telephones to all personnel working the islands to insure more rapid reporting and responses to escapes or thefts; CRL shall install chains and locks to all temporary and permanent caging; CRL shall provide remote sensing alarms, or in the alternative, provide day- time security personnel on site on both Keys during periods when CRL personnel are not present; CRL shall immediately tattoo or permanently mark all adult and subadult primates as they are captured and caged, so that ownership can be positively identified in the case of escape or theft. CRL shall comply with all sanitation, water disposal and waste disposal requirements provided by local, state or federal law. CRL shall reimburse the Commission in the amount of $1000 per primate, payable to the Florida Game and Fresh Water Fish Commission, as reimbursement for the Commission’s costs associated with the investigation or recapture of primates which have escaped or which have been removed without CRL’s authorization from the CRL facility. All primate escapes or thefts from the CRL facility must be reported to the Tallahassee Office, (904)488-6253, of the Commission immediately. CRL shall at all times maintain a complete and accurate inventory of all primates on Key Lois and Raccoon Key and shall submit such inventory records to the Commission (a) within thirty (30) days of the date of issuance of this permit, (b) at the Commission’s request, upon an escape or unauthorized removal of a primate from the facility, and (c) no later than thirty (30) days prior to the expiration of this permit. The inventory shall include the total number of primates held in field cages on each island, the total number of free-ranging primates on each island and numbers of primates brought to the CRL facility as of January 1, 1996. This permit may be subject to revocation, suspension, or non-renewal in accordance with Rule 39-5.004, F.A.C. Nothing herein shall authorize CRL to construct or maintain any structure or facility that would be in violation of the Monroe County Comprehensive Land Use Plan, the Monroe County Code and the Principles for Guiding Development in the Florida Keys Area of Critical State Concern or in violation of any final order, judgment, or settlement agreement thereto in the case of Department of Community Affairs vs. Charles River Laboratories, et al., DOAH Case No. 96- 1405DRI, FLAWAC APP-96-003 (Florida Land and Water Adjudicatory Commission). This permit will be effective twenty- one (21) days from the date of receipt of this notice by the applicant or within twenty-one (21) days from the date of publication of this notice, whichever is later. This addendum to permit will expire concurrent with the expiration of the Permit to Possess Wildlife for Exhibition or Public Sale, unless otherwise authorized by the Executive Director. THE 1990 CORRESPONDENCE On September 21, 1990, Robert M. Brantly, the Commission’s Executive Director, wrote to Dr. Schilling a letter that contained the following discussion on the issue of safety: F.A.C. 39-6.003(1)(a), requires, “A fence sufficient to deter entry by the public shall be present around the premises wherein Class I or Class II animals are housed or exercise outdoors.: There are no perimeter fences around Key Lois or Raccoon Key, and Rhesus macaques are classified as Class II animals. In the past, we have considered the water surrounding your facilities as a barrier to escape and public access. During the August 24th inspection, we found that water alone does not meet the intent of the regulation requiring a security fence. Past security breeches documented on that inspection included: The holding compound was broken into on Raccoon Key. The intruders released numerous primates. It is also possible that a theft of some primates occurred. This incident occurred four years ago. The holding compound was broken into again about two or three years ago. A macaque escaped twice (same animal) about five years ago. Employees recaptured the animal on Little Crane Key. A generator was stolen from one of the islands. You did not report the escapes to us as required in you agreement with the Commission, nor were we made aware of the security problems. To prevent future security breeches, you must construct a fence capable of deterring entry by the public and preventing the escape of the macaques from the islands. As an alternative to a monkey- proof fence, you may confine the primates in enclosures that meet minimum pen specifications; however, you must still construct a fence that will deter entry by the public. In October 1990, there was a meeting between Col. Brantly and Dr. Schilling and Mr. Routa, the attorney for CRL. On November 5, 1990, Col. Brantly wrote to Dr. Schilling a letter that contained the following: Having met with you and Mr. Routa on October 23, 1990, we now determine that the Laboratory [CRL] may continue to operate under its current captive animal permit without the perimeter fence required by Rule 39-6.0023, Florida Administrative Code. This rule requirement was not applied to the Laboratory because the water barrier around the keys was believed to provide adequate security to prevent monkeys from escaping and unauthorized persons from entering the facility. However, if a primate escapes or if unauthorized entry by the public were to occur, the water barrier would no longer be considered adequate security and appropriate action under Rule 39-6.002, F.A.C., would be taken. We ask that the Charles River Laboratory report, immediately and in writing, all incidents of escape of any monkeys from the islands or unauthorized public entry of the facilities. We further require, in accordance with Rule 39-9.002, F.A.C., that the Laboratory apply for a permit to capture any monkey which has escaped the islands. (Emphasis added.) The facts reflected by Col. Brantly’s two letters were accurate. ESCAPES SUBSEQUENT TO 1990 There have been several escapes of monkeys from Key Lois or Raccoon Key since the Commission’s 1990 letters. In addition, there have been unauthorized intrusions on these islands since 1990. On or about August 4, 1993, a CRL monkey (tattoo #81- 688) escaped from Raccoon Key to Little Crane Island which is approximately one-half mile from Raccoon Key. Little Crane Island is part of the Great White Heron Wildlife Refuge. The staff of the wildlife refuge shot and killed the monkey after attempts to tranquilize it failed. In 1994, a monkey was sighted on Big Torch Key and a monkey was also sighted on Little Torch Key. Both of these keys are approximately one-half mile from Raccoon Key. The monkey on Little Torch Key was a CRL monkey (tattoo #F-513), and was recaptured by CRL staff. The ownership of the monkey sighted on Big Torch Key was not established. In 1995, a CRL monkey escaped to Cudjoe Key, which is approximately two miles from Raccoon Key. This one-year old male was captured and returned to CRL. A second CRL monkey was sighted on Cudjoe Key in 1995. The Commission’s investigation revealed that this monkey had been taken from Key Lois by intruders and subsequently released. Another CRL monkey was stranded on a channel marker off Big Torch Key and recaptured by CRL. Rhesus monkeys are capable of wading or swimming from Raccoon Key and Key Lois to nearby islands. Most of the islands in the vicinity of Raccoon Key and Key Lois are capable of sustaining monkeys. Several of these nearby islands are residential areas. There is a lack of security for the CRL facilities on Raccoon Key and on Key Lois. There is no security personnel on either Raccoon Key or Key Lois after normal working hours. The additional security measures required by special permit condition 3 and its subparts are reasonable whether the CRL animals remain free range or are caged. POTENTIAL DANGER TO THE PUBLIC Rhesus monkeys have been known to attack humans if cornered or sufficiently provoked. Free range monkeys grow to approximately 30 pounds and are capable of inflicting serious injury on a human. Because they present a potential to humans, rhesus monkeys are appropriately classified as Class II wildlife by the Commission. There has not been an injury to a member of the public since CRL began its operations in 1973. This absence of injury is primarily attributed to the fact that the CRL monkeys are shy of humans because of the environment in which they were raised. Instead of attacking humans, it is more likely that an escaped monkey would run from humans. Although there is no perimeter fencing around either Raccoon Key or Key Lois, it is not appropriate to recommend such fencing as a means of preventing escapes because Rhesus monkeys can escape from fencing. The potential danger to the public posed by these free ranging animals can be eliminated only by removing all free ranging animals from both islands. The Commission has appropriately determined that CRL should be required to eliminate the free range populations from both islands. With adequate time, CRL can safely and humanely remove all free-ranging monkeys from Key Lois and Raccoon Key and continue its breeding operations with its monkeys being caged. If CRL elects to continue its operations by using cages on Key Lois and Raccoon Key, it would have to obtain all pertinent permits, including building permits from Monroe County, in order to construct the necessary cages to house the former free ranging monkeys. ENDANGERED SPECIES Silver rice rats are listed by the U.S. Fish and Wildlife Service and by the Commission as an endangered species. Raccoon Key provides a valuable habitat for this endangered species. The free-ranging monkey population has enhanced Raccoon Key as a habitat for silver rice rats because of the monkey chow and the fresh water that are made available. The additional caging that will be necessary for CRL to construct to eliminate the free-range population should be located in areas that will not destroy the silver rice rat habitat. Although Raccoon Key is within the National Key Deer Refuge, there was no evidence that Key Deer have historically used Raccoon Key. Key Deer would be more likely to use Raccoon Key if the monkeys were not present. Monkeys have destroyed habitat used by nesting birds and the mangrove terrapin. In determining that the free range monkeys should be eliminated, the Commission has considered the impacts of the free ranging monkeys on Raccoon Key and Key Lois on these species. Since the Commission’s responsibilities extend to these species, it was appropriate for the Commission to consider these impacts. HURRICANE VULNERABILITY Key Lois and Raccoon Key are vulnerable to hurricanes. These islands and all structures thereon would likely be inundated if a major hurricane were to strike them. While free- ranging monkeys would have a good chance of surviving a hurricane, any caged monkeys on Key Lois and Raccoon Key would likely drown when the storm surge inundates the cages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order that renews the subject permits with the special conditions recommended herein. DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 23rd day of January, 1997.
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of March, 2016.
Findings Of Fact At all times pertinent to the allegations in issue, the Respondent was licensed as a real estate broker in Florida. However, since April 28, 1989, his broker's license has been nonactive. The Petitioner, Division of Real Estate, is the state agency responsible for the policing of and administration of rules governing the real estate profession in Florida. In May, 1987, Mary Louise Hockman and her husband, Elden D. Hockman, now deceased, were interested in purchasing a flea market somewhere in Florida. A requirement was that it have additional acreage on which a recreational vehicle park could be established. At just about that time, Rickey L. Reynolds, a family friend, told them of the Cypress Hut, a Florida corporation, which owned and operated a flea market near Okeechobee, Florida. The property in question was sufficiently large to accommodate a recreational vehicle park. The Hockmans went to look at the property in question and, satisfied with what they saw, made an offer to buy it through the Respondent who was the agent for the owner, Mr. James Evans. This offer was memorialized in a purchase and sale agreement executed on May 23, 1987, signed by Mrs. Hockman and Mr. Reynolds, her partner, as buyers, and the Cypress Hut Flea Market, through James H. Evans, as seller. The purchase price was $550,000.00. Ten Thousand dollars was paid by Mrs. Hockman to the Respondent as an initial down payment. An additional $117,500.00 was to be paid at time of closing, and the remaining $422,500.00 was to be payable on a semiannual basis at 8% interest. The agreement also called for a commission of $27,500.00 to be paid to the Respondent, secured by a note between the buyer and the broker. Closing was to take place at a reasonable time after all contingencies, outlined separately, were fulfilled. These contingencies were memorialized in an addendum to the purchase and sale agreement signed by both the buyer and the seller on May 29, 1987. They included: Buyer's inspection and approval of all books and records of the corporation, Approval of a 55 unit recreational vehicle camp ground by county and city zoning officials, including environmental approval, and Seller's providing a survey proving that 17.2 acres was contained in the total real estate parcel to be conveyed. The addendum also provided that in the event these contingencies could not be satisfied to the buyer's "full satisfaction", all earnest money would be returned immediately to the buyer upon written demand. To satisfy these requirements, the seller provided the Hockmans with several sheets of paper containing yearly figures for the operation of the flea market. These figures did not constitute the full books and records of the corporation relating to the flea market operation and were not satisfactory to the Hockmans. The Hockmans were also provided with several 1983 applications submitted by Cypress Hut corporation to the county zoning officials, which were subsequently approved, for the establishment of a mobile home park on the property. A mobile home park approval is sufficient approval for the establishment and operation of a recreational vehicle park. However, the Hockmans were never provided with a survey clearly defining the extent of the real property in question. On September 21, 1987, Mrs. Hockman wrote to the Respondent indicating that if the formal contract for the sale was not signed by October 1, 1987, they would consider their offer withdrawn and demand a return of the earnest money paid, plus interest. This letter, sent to the Respondent by certified mail, was received by Respondent's wife who signed for it. Respondent claims, however, that he never received it. He and his wife were separated at the time, he was not living with her, and she neither gave it to him nor told him it had arrived. Respondent's wife was not called to verify his claim, but Petitioner was unable to present any evidence to disprove it, and it is accepted as fact. Nonetheless, on or about September 27, 1987, Mrs. Hockman personally spoke with the Respondent at the Cypress Hut Flea Market and directly reiterated to him the substance and terms of that letter she had sent him. In response, Respondent indicated he would speak to Mr. Evans about the Hockmans' demand. Shortly thereafter, Respondent wrote to Mr. Hockman, referring to an alleged statement by Hockman's attorney that all contingencies had been satisfied, and acknowledging that Cypress Hut was ready and willing to close as of October 1, 1987. No independent evidence of such an opinion by Hockman's attorney was forthcoming and that claim is found to be without merit. Enclosed with Respondent's letter, was a letter he had received from Evans making a demand upon him for the disbursement of the earnest money, based on Hockman's indication of no further interest in going through with the purchase. Notwithstanding this direct notice, neither Mr. Evans nor the Respondent contacted the Hockmans prior to October 1, 1987, and after that date, the Hockmans made several telephone calls to the Respondent which went unanswered. Finally, because they had made plans to go on vacation, they departed the area and were assured by Mr. Reynolds, their partner in the proposed purchase, that he would contact Respondent in their absence. Respondent denies he did and there is, again, no evidence to the contrary. When the Hockmans returned to the area, they contacted Respondent and advised him again that they wanted their earnest money refunded as they were considering the agreement void. Respondent did not repay the money in question. Instead, on October 13, 1987, he withdrew the $10,000.00 paid to him by the Hockmans, which he had placed in his escrow account pending closing, and on October 15, 1987, purchased a cashier's check in the amount of $5,000.00 payable to James H. Evans. This represented one-half of the earnest money paid by the Hockmans. He converted the other $5,000.00 to his own use. Respondent justifies doing this on the basis of a previous phone call he claims to have made to the Division of Real Estate in which he outlined the circumstances and sought the Division's guidance. He states he was advised by a gentleman, further unidentified, who indicated he had two options: to forward the money to the Division for agency arbitration of the dispute between the Hockmans and Mr. Evans, or to adhere to the terms of the agreement, consider the deposit forfeited, disburse the funds to the seller and himself, and rely upon the courts to determine, upon claim filed by the buyer, who was entitled to the funds. He chose the latter though it is found to be unlikely he got such advice. Suit was thereafter filed by Mrs. Hockman against not only the Respondent but also the Cypress Hut. Respondent chose not to retain counsel but to rely on counsel for his co-defendant to represent him. Prior to hearing, however, the claim against Cypress Hut was abandoned, its counsel released, and Respondent was left as sole defendant. He still did not seek a delay to retain counsel and at the very brief hearing held before the Circuit Judge in December, 1988, a Judgement was entered against him in favor of Mrs. Hockman for the full $10,000.00, plus interest and costs. With knowledge of the terms of the Judgement, Respondent still has not satisfied it through reimbursement of Mrs. Hockman, claiming he has no assets with which to do so. Discovery in aid of execution revealed he had no assets, either realty or personalty, upon which to execute since all his assets were transferred to his wife prior to suit. When Mrs. Hockman filed her initial complaint with the Division, an investigation was conducted by Mr. Maye who recommended that action be taken against Respondent based on evidence of violations. However, it would appear that a contrary position was taken by the Division which advised Respondent, in writing, that a determination of no probable cause had been made. However, after the judgement was entered against Respondent, the Division reversed itself and filed the instant Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, GEORGE RICHARD MCKOWEN's license as a real estate broker in Florida be suspended for three years, that he pay an administrative fine of $3,000.00, and that he be reprimanded. RECOMMENDED this 20th day of March, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 20th day of March, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate 400 W. Robinson Street P. O. Box 1900 Orlando, Florida 32802 George Richard McKowen 3503 14th Street, West, #76 Bradenton, Florida 34205 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department take no action, against Henderson Signs on these charges. DONE and ORDERED this 16th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, The Carlton Building Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1979. COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 James P. Appleman, Esquire 206 Market Street Post Office Box 285 Marianna, Florida 32446
The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
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 upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the administrative complaints against Byron Bales (Case No. 83- 1224), Aubrey L. Blocker (Case No. 83-767), Colonel Matthew Bales (Case No. 83- 762), and Robert M. Bales, Jr. (Case No. 83-766) be dismissed; That the identification card of Stanley E. Fryer (Case No. 83-778) be suspended for ninety (90) days and that a fine in the amount of $100.00, payable within thirty (30) days, be assessed against Fryer; That the identification card and certificate of John H. Witherspoon (Case-No. 83-777) be suspended for six (6) months and that a fine in the amount of $250.00, payable within thirty (30) days, be assessed against Witherspoon; That the Company's Jacksonville business license (Case No. 83-776 and 84-0855) be suspended for six (6) months and that a fine in the amount of $250.00, payable within thirty (30) days, be assessed against the licensee; and That the Company's Live Oak/Wellborn license (Case No. 83-765 and 84- 0038) be suspended for twelve (12) months and that a fine in the amount of $500.00, payable within thirty (30) days, be assessed against the licensee. RECOMMENDED this 7 day of August, 1984, at Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7 day of August, 1984.
The Issue Whether Respondent, L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. and its surety, Western Surety Company owes Petitioner $4,210.00 for East Palatka Holly Trees.
Findings Of Fact Petitioner A.D. Andrews, Inc. is a producer of agricultural products, pursuant to Section 604.15 (9), Florida Statutes. Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapes, Inc. is a dealer in agricultural products pursuant to Section 604.15 (2), Florida Statutes. Respondent’s surety is Western Surety Company Teal Pomeroy, a salesman for Petitioner, and Pat Tronzano, Purchasing Manager for Respondent, have a business history representing their respective principals. All previous dealings have been satisfactory, and they share a mutual respect. While at a trade show in Orlando, Florida, Teal and Tronzano entered into an oral agreement for the sale of 31 East Palatka Holly bushes/trees (30 at the rate of $135.00 each, and one for $160.00) at a total price of $4,210.00, due from Respondent to Petitioner. Neither participant in this arrangement testified to any oral terms covering “point of sale” or a guarantee of any condition of the hollies at a final destination. Neither participant testified that a standard course of business on these issues had arisen between them as a result of their prior transactions. On October 9, 2007, Mr. Tronzano sent a third party freighter (trucker) to pick-up the hollies at Petitioner's nursery in Chiefland, Florida, and transport them, at Respondent’s expense, to Selena, Texas, for planting and landscaping by Respondent. Mr. Tronzano did not accompany the third party freighter to Petitioner's nursery or on the subsequent trip to Texas. He never saw the hollies in question prior to loading or while they were still on the truck after loading. The trucker selected by Respondent was one specially skilled in the transport of landscape plants, and Respondent has successfully used him for prior purchases and transports. The third party freight truck arrived at Petitioner’s Chiefland, Florida, nursery at approximately 11:00 a.m. on October 9, 2007, before all the hollies had been dug up. However, the trees that were ready to load and those that had to be dug up were loaded by Petitioner, and by 2:00 p.m., the truck, fully loaded, left Petitioner’s property. Petitioner’s invoice clearly states: ATTENTION: If these trees are not in satisfactory condition when received, do not accept them. We do not replace trees. Please note any discrepancies or problems with materials. The invoice does not show the trucker noted any problems with the hollies. The trucker also signed the delivery ticket under the statement, “I acknowledge that trees were received in good condition.” Approximately 48 hours later, Mr. Tronzano received a report from Texas that when the freighter delivered the hollies to the Selena, Texas site, some hollies were dead and other were dying. Mr. Tronzano did not personally witness anything at the final destination. Respondent's photographs in evidence, the date of which has not been automatically printed on them, show some trees which had already been unloaded in Texas with dried- out root balls. They show no trees with dried-out root balls still on the truck. All photographs show intact root balls, although they are dusty and some trees are clearly dead or dying. One tree is dead in a pot. Although it had taken Respondent’s trucker approximately 48 hours to get the hollies to their ultimate destination in Texas, the normal driving time is 16-20 hours. Because federal regulations require a period of rest for commercial drivers every eight hours, Respondent put forth the theory that because there had been a delay of three hours at Petitioner’s nursery while some hollies were dug up and loaded, the delaying effect of three hours snowballed to a total delay of as much as 22-28 hours for the truck’s arrival time at the final destination. This theory is speculative and unsubstantiated by the evidence. Despite some earlier attempts, Respondent did not notify Petitioner of the condition of the hollies at the final destination until October 15, 2007. Respondent concedes that 11 of the 131 hollies were accepted in good condition. Whether one of the survivors was the single holly tree sold for $160.00, is not in evidence. Respondent has not paid Petitioner for any of the hollies. Mr. Tronzano has not had a dry-out problem like this one in ten years. Respondent's second theory of why the hollies arrived at the Texas destination in poor shape is an assertion that the way Petitioner processed and handled the harvesting of the hollies adversely affected their health. Respondent speculates that Petitioner’s digging and immediately loading the just-dug hollies onto the truck sent by Respondent resulted in shock to the hollies’ root systems so that the root systems dried out. Mr. Teal and Mr. Tronzano agree that previous trees (not necessarily East Palatka hollies) sold by Petitioner to Respondent had been "pre-dug" and "staged" by Petitioner in anticipation of the arrival of the freighter. “Staging” means that Petitioner dug up the trees, put them on a trailer, and took them to a centralized loading area at the nursery for Respondent’s pick-up. According to Mr. Teal, the foregoing “pre-dig and stage” method prevents "double-handling" of trees, but many trees are dug up only when a truck arrives at the nursery to take them away. Mr. Teal was not present at the nursery on October 9, 2007, but opined that if the hollies on this occasion had been pre-watered, they would be unlikely to die of shock, despite being dug up and loaded right away. Moreover, the particular trees sold to Respondent came out of a field that Petitioner irrigates, so "dry out" should not have been a problem. Mary Andrews works in Petitioner's business office. She did not know about Respondent's order until the truck arrived on October 9, 2007, but she managed the "dig and load" within three hours of the truck’s arrival. She testified that Petitioner digs trees throughout the year so that when a truck arrives, the trees have not been sitting dry in a field for lengthy periods of time. Petitioner sold 3500 similar trees in the previous year without any dry-out problems. Petitioner had admitted in evidence, without objection, Florida Division of Forestry rainfall records for three locations near Petitioner's nursery. All three official records show six inches of rainfall for the week immediately preceding October 9, 2007. Petitioner maintains that the trucker should have watered the hollies en route. Respondent believes the trucker did water them, but the trucker did not testify, so there is no direct evidence that the trucker watered the hollies en route. The parties have tried to work this situation out, but their respective offers of compromise are not admissible herein, pursuant to Section 90.408, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., shall pay Petitioner, A.D. Andrews Nursery, Inc., the sum of $4,210.00, and that if L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., fails to pay Petitioner, A.D. Andrews Nursery, Inc., within 30 days of the final order, then Respondent, Western Surety Company, shall pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S 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 3rd day of June, 2008. COPIES FURNISHED: Teal Pomeroy Qualified Representative A.D. Andrews Nursery, Inc. Post Office Box 1126 Chiefland, Florida 32644-1126 Pat Tronzano Qualified Representative L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. 1437 Halsey Way Carrollton, Texas 75007-4410 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
