The Issue The issue to be determined in this bid protest matter is whether Respondent, Florida Housing Finance Corporation’s, intended award of funding under Request for Applications 2017- 108, entitled “SAIL Financing of Affordable Multifamily Housing Developments To Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits” was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Florida Housing is a public corporation created pursuant to section 420.504, Florida Statutes. Its purpose is to provide and promote public welfare by administering the governmental function of financing affordable housing in Florida. Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code. As such, Florida Housing is authorized to establish procedures to distribute low income housing tax credits and to exercise all powers necessary to administer the allocation of these credits. § 420.5099, Fla. Stat. For purposes of this administrative proceeding, Florida Housing is considered an agency of the State of Florida. To promote affordable housing in Florida, Florida Housing offers a variety of programs to distribute housing credits. (Housing credits, also known as tax credits, are a dollar-for-dollar offset of federal income tax liability.) One of these programs is the State Apartment Incentive Loan program (“SAIL”), which provides low-interest loans on a competitive basis to affordable housing developers. SAIL funds are available each year to support the construction or substantial rehabilitation of multifamily units affordable to very low- income individuals and families. See § 420.5087, Fla. Stat. Additional sources of financial assistance include the Multifamily Mortgage Revenue Bond program (“MMRB”) and non- competitive housing credits. Florida Housing administers the competitive solicitation process to award low-income housing tax credits, SAIL funds, nontaxable revenue bonds, and other funding by means of request for proposals or other competitive solicitation. Florida Housing initiates the competitive application process by issuing a Request for Applications. §§ 420.507(48) and 420.5087(1), Fla. Stat.; and Fla. Admin. Code R. 67-60.009(4). The Request for Application at issue in this matter is RFA 2017-108, entitled “SAIL Financing of Affordable Multifamily Housing Developments to Be Used in Conjunction with Tax-Exempt Bond Financing and Non-Competitive Housing Credits.” Florida Housing issued RFA 2017-108 on August 31, 2017. Applications were due by October 12, 2017.6/ The purpose of RFA 2017-108 is to distribute funding to create affordable housing in the State of Florida. Through RFA 2017-108, Florida Housing intends to award approximately $87,000,000 for proposed developments serving elderly and family demographic groups in small, medium, and large counties. RFA 2017-108 allocates $46,279,600 to large counties, $32,308,400 to medium counties, and $8,732,000 to small counties. RFA 2017-108 established goals to fund: Two Elderly, new construction Applications located in Large Counties; Three Family, new construction Applications located in Large Counties; One Elderly, new construction Application located in a Medium County; and Two Family, new construction Applications located in Medium Counties. Thirty-eight developers submitted applications in response to RFA 2017-108. Of these applicants, Florida Housing found 28 eligible for funding, including all Petitioners and Intervenors in this matter. Florida Housing received, processed, deemed eligible or ineligible, scored, and ranked applications pursuant to the terms of RFA 2017-108, Florida Administrative Code Chapters 67- 48 and 67-60, and applicable federal regulations. RFA 2017-108 provided that applicants were scored based on certain demographic and geographic funding tests. Florida Housing sorted applications from the highest scoring to the lowest. Only applications that met all the eligibility requirements were eligible for funding and considered for selection. Florida Housing created a Review Committee from amongst its staff to review and score each application. On November 15, 2017, the Review Committee announced its scores at a public meeting and recommended which projects should be awarded funding. On December 8, 2017, the Review Committee presented its recommendations to Florida Housing’s Board of Directors for final agency action. The Board of Directors subsequently approved the Review Committee’s recommendations and announced its intention to award funding to 16 applicants. As a preliminary matter, prior to the final hearing, Florida Housing agreed to the following reassessments in the scoring and selection of the applications for funding under RFA 2017-108: SP Lake and Osprey Pointe: In the selection process, Florida Housing erroneously determined that SP Lake was eligible to meet the funding goal for the “Family” demographic for the Family, Medium County, New Construction Goal. (SP Lake specifically applied for funding for the “Elderly” demographic.) Consequently, Florida Housing should have selected Osprey Pointe to meet the Family, Medium County, New Construction Goal. Osprey Pointe proposed to construct affordable housing in Pasco County, Florida. Florida Housing represents that Osprey Pointe is fully eligible for funding under RFA 2017-108. (While Osprey Pointe replaces SP Lake in the funding selection for the “Family” demographic, SP Lake remains eligible for funding for the “Elderly” demographic.) Sierra Bay and Northside II: In the scoring process, Florida Housing erroneously awarded Sierra Bay proximity points for Transit Services. Upon further review, Sierra Bay should have received zero proximity points. Consequently, Sierra Bay’s application is ineligible for funding under RFA 2017-108. By operation of the provisions of RFA 2017-108, Florida Housing should have selected Northside II (the next highest ranked, eligible applicant) for funding to meet the Elderly, Large County, New Construction Goal. Florida Housing represents that Northside II is fully eligible for funding under RFA 2017-108. Harbour Springs: Florida Housing initially deemed Harbour Springs eligible for funding under RFA 2017-108 and selected it to meet the Family, Large County, New Construction Goal. However, because Harbour Springs and Woodland Grove are owned by the same entity and applied using the same development site, under rule 67-48.004(1), Harbour Springs is ineligible for funding. (Florida Housing’s selection of Woodland Grove for funding for the Family, Large County, New Construction Goal, is not affected by this determination.) The sole disputed issue of material fact concerns Liberty Square’s challenge to Florida Housing’s selection of Woodland Grove to meet the Family, Large County Goal. Liberty Square and Woodland Grove applied to serve the same demographic population under RFA 2017-108. If Liberty Square successfully challenges Woodland Grove’s application, Liberty Square, as the next eligible applicant, will be selected for funding to meet the Family, Large County Goal instead of Woodland Grove. (At the hearing on December 8, 2017, Florida Housing’s Board of Directors awarded Woodland Grove $7,600,000 in funding.) The focus of Liberty Square’s challenge is the information Woodland Grove provided in response to RFA 2017-108, Section Four, A.5.d., entitled “Latitude/Longitude Coordinates.” Liberty Square argues that Woodland Grove’s application is ineligible because its Development Location Point, as well as the locations of its Community Services and Transit Services, are inaccurate. Therefore, Woodland Grove should have received zero “Proximity” points which would have disqualified its application for funding. RFA 2017-108, Section Four, A.5.d(1), states, in pertinent part: All Applicants must provide a Development Location Point stated in decimal degrees, rounded to at least the sixth decimal place. RFA 2017-108 set forth scoring considerations based on latitude/longitude coordinates in Section Four, A.5.e, entitled “Proximity.” Section Four, A.5.e, states, in pertinent part: The Application may earn proximity points based on the distance between the Development Location Point and the Bus or Rail Transit Service . . . and the Community Services stated in Exhibit A. Proximity points will not be applied to the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference ” In other words, the Development Location Point identified the specific location of an applicant’s proposed housing site.7/ Applicants earned “proximity points” based on the distance between its Development Location Point and selected Transit and Community Services. Florida Housing also used the Development Location Point to determine whether an application satisfied the Mandatory Distance Requirement under RFA 2017-108, Section Four A.5.f. To be eligible for funding, all applications had to qualify for the Mandatory Distance Requirement. The response section to Section Four, A.5.d., is found in Exhibit A, section 5, which required each applicant to submit information regarding the “Location of proposed Development.” Section 5 specifically requested: County; Address of Development Site; Does the proposed Development consist of Scattered Sites?; Latitude and Longitude Coordinate; Proximity; Mandatory Distance Requirement; and Limited Development Area. Section 5.d. (Latitude and Longitude Coordinates) was subdivided into: (1) Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place Longitude in decimal degrees, rounded to at least the sixth decimal place In its application, Woodland Grove responded in section 5.a-d as follows: County: Miami-Dade Address of Development Site: NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032. Does the proposed Development consist of Scattered Sites? No. Latitude and Longitude Coordinate; Development Location Point Latitude in decimal degrees, rounded to at least the sixth decimal place: 25.518647 Longitude in decimal degrees, rounded to at least the sixth decimal place: 80.418583 In plotting geographic coordinates, a “-” (negative) sign in front of the longitude indicates a location in the western hemisphere (i.e., west of the Prime Meridian, which is aligned with the Royal Observatory, Greenwich, England). A longitude without a “-” sign places the coordinate in the eastern hemisphere. (Similarly, a latitude with a negative value is south of the equator. A latitude without a “-” sign refers to a coordinate in the northern hemisphere.) As shown above, the longitude coordinate Woodland Grove listed in section 5.d(1) did not include a “-” sign. Consequently, instead of providing a coordinate for a site in Miami-Dade County, Florida, Woodland Grove entered a Development Location Point located on the direct opposite side of the planet (apparently, in India). At the final hearing, Florida Housing (and Woodland Grove) explained that, except for the lack of the “-” sign, the longitude Woodland Grove recorded would have fallen directly on the address it listed as its development site in section 5.b., i.e., the “NE corner of SW 268 Street and 142 Ave, Miami-Dade, FL 33032.” In addition to the longitude in section 5.d., Woodland Grove did not include a “-” sign before the longitude coordinates for its Transit Services in section 5.e(2)(b) or for any of the three Community Services provided in section 5.e(3). Again, without a “-” sign, the longitude for each of these services placed them in the eastern hemisphere (India) instead of the western hemisphere (Miami-Dade County). In its protest, Liberty Square contends that, because Woodland Grove’s application listed a Development Location Point in India, Florida Housing should have awarded Woodland Grove zero proximity points under Section Four, A.5.e. Consequently, Woodland Grove’s application failed to meet minimum proximity eligibility requirements and is ineligible for funding. Therefore, Liberty Square, as the next eligible applicant, should be awarded funding for the Family, Large County Goal, under RFA 2017-108.8/ Liberty Square asserts that a correct Development Location Point is critical because it serves as the beginning point for assigning proximity scores. Waiving an errant Development Location Point makes the proximity scoring meaningless. Consequently, any such waiver by Florida Housing is arbitrary, capricious, and contrary to competition. At the final hearing, Woodland Grove claimed that it inadvertently failed to include the “-” sign before the longitude points. To support its position, Woodland Grove expressed that, on the face of its application, it was obviously applying for funding for a project located in Miami-Dade County, Florida, not India. In at least five places in its application, Woodland Grove specified that its proposed development would be located in Miami-Dade County. Moreover, several attachments to Woodland Grove’s application specifically reference a development site in Florida. Woodland Grove attached a purchase agreement for property located in Miami-Dade County (Attachment 8). To satisfy the Ability to Proceed requirements in RFA 2017-108, Woodland Grove included several attachments which all list a Miami-Dade address (Attachments 9-14). Further, Woodland Grove submitted a Local Government Verification of Contribution – Loan Form executed on behalf of the Mayor of Miami-Dade County, which committed Miami-Dade County to contribute $1,000,000.00 to Woodland Grove’s proposed Development (Attachment 15). Finally, to qualify for a basis boost under RFA 2017-108, Woodland Grove presented a letter from Miami-Dade County’s Department of Regulatory and Economic Resources, which also referenced the address of the proposed development in Miami-Dade County (Attachment 16). In light of this information, Woodland Grove argues that its application, taken as a whole, clearly communicated that Woodland Grove intended to build affordable housing in Miami-Dade County. Nowhere in its application, did Woodland Grove reference a project in India other than the longitude coordinates which failed to include “-” signs. Accordingly, Florida Housing was legally authorized to waive Woodland Grove’s mistake as a “harmless error.” Thus, Florida Housing properly selected the Woodland Grove’s development for funding to meet the Family, Large County Goal. Florida Housing advocates for Woodland Grove’s selection to meet the Family, Large County Goal, under RFA 2017- 108. Florida Housing considers the omission of the “-” signs before the longitude coordinates a “Minor Irregularity” under rule 67-60.002(6). Therefore, Florida Housing properly acted within its legal authority to waive, and then correct, Woodland Grove’s faulty longitude coordinates when scoring its application. In support of its position, Florida Housing presented the testimony of Marisa Button, Florida Housing’s current Director of Multifamily Allocations. In her job, Ms. Button oversees the Request for Applications process; although, she did not personally participate in the review, scoring, or selection decisions for RFA 2017-108. Ms. Button initially explained the process by which Florida Housing selected the 16 developments for funding under RFA 2017-108. Ms. Button conveyed that Florida Housing created a Review Committee from amongst its staff to score the applications. Florida Housing selected Review Committee participants based on the staff member’s experience, preferences, and workload. Florida Housing also assigned a backup reviewer to separately score each application. The Review Committee members independently evaluated and scored their assigned portions of the applications based on various mandatory and scored items. Thereafter, the scorer and backup reviewer met to reconcile their scores. If any concerns or questions arose regarding an applicant’s responses, the scorer and backup reviewer discussed them with Florida Housing’s supervisory and legal staff. The scorer then made the final determination as to each application. Ms. Button further explained that applicants occasionally make errors in their applications. However, not all errors render an application ineligible. Florida Housing is authorized to waive “Minor Irregularities.” As delineated in RFA 2017-108, Section Three, A.2.C., Florida Housing may waive “Minor Irregularities” when the errors do not provide a competitive advantage or adversely impact the interests of Florida Housing or the public. See Fla. Admin. Code R. 67- 60.002(6) and 67-60.008. Such was the case regarding Woodland Grove’s application. Heather Green, the Florida Housing staff member who scored the “Proximity” portion of RFA 2017-108, waived the inaccurate longitude coordinates as “Minor Irregularities.” Ms. Green then reviewed Woodland Grove’s application as if the proposed development was located in Miami-Dade County, Florida. Florida Housing assigned Ms. Green, a Multifamily Loans Manager, as the lead scorer for the “Proximity” portion of RFA 2017-108, which included the Development Location Point listed in Exhibit A, section 5.d. Ms. Green has worked for Florida Housing since 2003 and has scored proximity points for Request for Applications for over ten years. At the final hearing, Florida Housing offered the deposition testimony of Ms. Green. In her deposition, Ms. Green testified that she is fully aware that, to be located in the western hemisphere (i.e., Miami-Dade County), a longitude coordinate should be marked with a negative sign or a “W.” Despite this, Ms. Green felt that the longitude coordinates Woodland Grove used without negative signs, particularly its Development Location Point, were clearly typos or unintentional mistakes. Therefore, Ms. Green waived the lack of a negative sign in front of the longitude coordinates in section 5.d. and section 5.e. as “Minor Irregularities.” Ms. Green understood that she was authorized to waive “Minor Irregularities” by rule under the Florida Administrative Code. Ms. Green felt comfortable waiving the inaccurate longitude coordinates because everywhere else in Woodland Grove’s application specifically showed that its proposed housing development was located in Miami-Dade County, not India. Accordingly, when scoring Woodland Grove’s application, Ms. Green corrected the longitude entries by including a negative sign when she plotted the coordinates with her mapping software. Ms. Green then determined that, when a “-” was inserted before the longitude, the coordinate lined up with the address Woodland Grove listed for the Development Location Point. Therefore, Woodland Grove received proximity points and was eligible for funding under RFA 2017-108. (See RFA 2017-108, Section Five.A.1.) However, Ms. Green acknowledged that if she had scored the application just as it was presented, Woodland Grove would not have met the required qualifications for eligibility. Ms. Button relayed that Florida Housing fully accepted Ms. Green’s decision to waive the missing negative signs in Woodland Grove’s response to section 5.d. and 5.e. as “Minor Irregularities.” Ms. Button opined that Woodland Grove’s failure to place a “-” mark before the longitude was clearly an unintentional mistake. Ms. Button further commented that Florida Housing did not believe that scoring Woodland Grove’s development as if located in the western hemisphere (instead of India), provided Woodland Grove a competitive advantage. Because it was evident on the face of the application that Woodland Grove desired to develop a housing site in Miami-Dade County, Ms. Green’s decision to overlook the missing “-” sign did not award Woodland Grove additional points or grant Woodland Grove an advantage over other applicants. Neither did it adversely impact the interests of Florida Housing or the public. However, Ms. Button also conceded that if Ms. Green had scored the application without adding the “-” sign, Woodland Grove would have received zero proximity points. This result would have rendered Woodland Grove’s application ineligible for funding. Ms. Button also pointed out that Ms. Green waived the omission of “-” signs in two other applications as “Minor Irregularities.” Both Springhill Apartments, LLC, and Harbour Springs failed to include negative signs in front of their longitude coordinates. As with Woodland Grove, Ms. Green considered the development sites in those applications as if they were located in Miami-Dade County (i.e., in the western hemisphere). Ms. Green also waived a mistake in the Avery Commons application as a “Minor Irregularity.” The longitude coordinate for the Avery Commons Development Location Point (section 5.d(1)) was blank. However, Ms. Green determined that Avery Commons had placed the longitude in the blank reserved for Scattered Sites coordinates (section 5.d(2)). When scoring Avery Commons’ application, Ms. Green considered the coordinate in the appropriate section. According to Ms. Button, Florida Housing felt that this variation did not provide Avery Commons a competitive advantage. Nor did it adversely impact the interests of Florida Housing or the public. Finally, Ms. Button explained that the application Florida Housing used for RFA 2017-108 was a relatively new format. In previous Request For Applications, Florida Housing required applicants to submit a Surveyor Certification Form. On the (now obsolete) Surveyor Certification Form, Florida Housing prefilled in an “N” in front of all the latitude coordinates and a “W” in front of all the longitude coordinates. However, the application used in RFA 2017-108 did not place an “N” or “W” before the Development Location Point coordinates. Based on the evidence presented at the final hearing, Liberty Square did not establish, by a preponderance of the evidence, that Florida Housing’s decision to award funding to Woodland Grove for the Family, Large County Goal, under RFA 2017-108 was clearly erroneous, contrary to competition, arbitrary, or capricious. Florida Housing was within its legal authority to waive, then correct, the missing “-” sign in Woodland Grove’s application as “Minor Irregularity.” Therefore, the undersigned concludes, as a matter of law, that Petitioner did not meet its burden of proving that Florida Housing’s proposed action to select Woodland Grove for funding was contrary to its governing statutes, rules or policies, or the provisions of RFA 2017-108.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing Finance Corporation enter a final order dismissing the protest by Liberty Square. It is further recommended that Florida Housing Finance Corporation rescind the intended awards to Sierra Bay, SP Lake, and Harbour Springs, and instead designate Northside II, Osprey Pointe, and Pembroke Tower Apartments as the recipients of funding under RFA 2017-108.10/ DONE AND ENTERED this 19th day of April, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 19th day of April, 2018.
The Issue The issue in this case is whether an Application to the South Florida Water Management District for Authority to Utilize Works or Land of the District filed by Respondents, Joint Facilities Board of River Oaks H.O.A. and Little Oaks H.O.A., should be approved by the South Florida Water Management District.
Findings Of Fact Petitioners, Arthur Pivirotto and Ann H. Pivirotto presented no evidence in this matter. Petitioners have, therefore, failed to meet their burden of proof that Right of Way Occupancy Permit Application Number 94-1005-2 should not be granted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a Final Order in case number 96-0870 dismissing the Petition for Formal Proceedings Per 40E-1.521 Fl. Admin. Code and 120.57 F.S. DONE and ENTERED this 2nd day of August, 1996, in Tallahassee Florida. LARRY SART1N, 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 2nd day of August, 1996. COPIES FURNISHED: William A. Fleck, Esquire 6650 West Indiantown Road Suite 200 Jupiter, Florida 33458 Charles H. Burns, Esquire 1080 East Indiantown Road Jupiter, Florida 33477 Scott Allen Glazier, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Donald S. Fradley, Esquire 27 Pennock Lane Jupiter, Florida 33458 Alan J. Cooper, Esquire Tequesta Corporate Center 250 Tequesta Drive, Suite 200 Tequesta, Florida 33469 Samuel E. Poole, III, Executive Director Department of Environmental Protection South Water Management District Post Office Box 24680 West Palm Beach, Florida 33146
The Issue Which certificate of need application seeking to establish a new 120-bed community nursing home in Nursing Home District 6, Subdistrict 5 (Polk County), on balance, best satisfies the statutory and rule criteria for approval: Lakeland Oaks NH, LLC’s CON Application No. 10309, or Eighth Florida Living Options, LLC’s CON Application No. 10303.
Findings Of Fact The Parties Lakeland Oaks NH, LLC Lakeland Oaks, LLC, is a Delaware, limited-liability company formed by Greystone Healthcare Management Corporation (Greystone) for the purpose of filing its certificate of need application at issue in this proceeding. Greystone is a Delaware, for-profit, corporation which operates 26 skilled nursing facilities, two assisted living facilities, and six home health branches in Florida. It also operates 10 nursing homes in Ohio. Recently, Greystone constructed and opened a new nursing home known as The Club Health and Rehabilitation Center at the Villages (The Club Villages) in Marion County, Florida. Greystone is headquartered in Tampa, Florida adjacent to Polk County. Eighth Florida Living Options, LLC Eighth Florida Living Options, LLC, is a Florida, limited-liability company formed by Florida Living Options, Inc. (Florida Living Options) for the purpose of filing its certificate of need application at issue in this proceeding. Florida Living Options is a Florida not-for-profit corporation which operates three skilled nursing facilities, three assisted living facilities, and two independent living facilities in Florida. Among them, Florida Living Options operates an assisted living facility known as Hawthorne Lakeland in Polk County, Florida, and recently constructed and opened a new nursing home in Sarasota, Florida, known as Hawthorne Village of Sarasota. Florida Living Options is headquartered just outside of Tampa about six miles from the Greystone headquarters. Agency for Health Care Administration AHCA is the state agency that administers Florida’s CON program. Procedural History The Fixed Need Pool On October 3, 2014, the Agency published a need for 203 additional community nursing home beds in Nursing Home Subdistrict 6-5 encompassing Polk County, for the July 2017 Planning Horizon. In response, eight applicants, including Lakeland Oaks and Eighth Florida, filed CON applications seeking to establish new community nursing home beds in Polk County. On February 23, 2015, the Agency published official notice of its decisions on those applications. The Agency awarded all 203 beds from the fixed-need pool, approving applications filed by Florida Presbyterian Homes, Inc. (14 beds), Lakeland Investors, LLC (69 beds), and Lakeland Oaks (120 beds). The Agency denied the remaining applications; including Eighth Florida’s CON Application No. 10303 seeking 120 beds from the fixed-need pool. Eighth Florida initially challenged all three awards, but voluntarily dismissed its challenge to Florida Presbyterian Homes, Inc. and Lakeland Investors, LLC’s awards prior to the final hearing. As a result, only 120 of the 203 beds in the fixed-need pool are at issue in this proceeding. The Proposals Greystone’s Lakeland Oaks Lakeland Oaks’ CON Application No. 10309 proposes to develop a 120-bed skilled nursing facility (SNF) in Sub-district 6-5, Polk County, consisting of 60 private rooms and 30 semi- private rooms. Lakeland Oaks proposes to offer high quality, short- term rehabilitation services and long-term care services in a country club style atmosphere. Some of the services Lakeland Oaks plans to offer include physical, occupational, and speech therapy; wound care; pain management; and lymphedema therapy. Lakeland Oaks’ proposal is partially modeled after a new SNF established by Greystone called The Club Villages in Marion County, Florida. Greystone developed The Club Villages in 2012 through the transfer of 60 beds from New Horizon NH, LLC, d/b/a The Lodge Health and Rehabilitation Center, an existing 159-bed skilled nursing facility in Ocala, Marion County. The Club Villages provides short-term rehabilitation to patients in a resort-style environment. The Club Villages has been successful since its opening, achieving full utilization within less than six months of operation. It recently added eight additional beds, resulting in a total bed complement of 68 beds, through a statutory exemption for highly utilized nursing home providers. The Club Villages was awarded the LTC & Senior Living LINK Spirit of Innovation Award, which recognizes facilities with innovative and inspirational designs. As of the final hearing, Greystone had not made a formal decision on site selection for the proposed Lakeland Oaks project. However, the evidence at hearing showed that Greystone plans to construct the proposed Lakeland Oaks facility in Polk County at one of four potential sites located near the I-4 interstate and major roadways for easy accessibility in an area with a high concentration of residents age 65 and older. The potential sites are in close proximity to the existing acute care hospitals in Polk County, which, from a health planning perspective, would promote a coordination of care. Given the number of available potential sites, it is not expected that Greystone will have difficulty securing a location for the proposed Lakeland Oaks project. Eighth Florida Living Options Eighth Florida’s CON Application No. 10303 proposes to establish a 120-bed SNF next to Hawthorne Lakeland, Florida Living Options’ existing assisted living facility in Polk County. The proposed facility will consist of two 60-bed pods, consisting of private and semi-private rooms. If approved, Eighth Florida’s proposed SNF will be part of a campus known as Hawthorne Village. In addition to the proposed SNF and Hawthorne Lakeland, Eighth Florida affiliates also plan to construct and operate a second assisted living facility and an independent living facility on the Hawthorne Village campus. An important part of Florida Living Options’ business model is to provide skilled nursing, assisted living, and independent living services on the same campus. By providing different levels of care on the same campus, it is envisioned that residents of Florida Living Options’ facilities can transition among the facilities as their care needs change. Eighth Florida plans to model its proposed skilled nursing facility on Hawthorne Village of Sarasota (Hawthorne- Sarasota), which opened in January 2013. Compared to Greystone’s The Club Villages, Hawthorne-Sarasota had a slow ramp up and only achieved 85 percent utilization after 24 months of operation. The Agency’s Preliminary Decision On February 23, 2015, in Volume 41, Number 36 of the Florida Administrative Record, the Agency for Health Care Administration (AHCA) announced its intent to award 83 of the beds identified to be needed in Polk County to other applicants not involved in this hearing; to approve the application of Lakeland Oaks for CON 10309 for 120 beds; and to deny the application of Eighth Florida for CON 10303 for 120 beds. Statutory and Rule Review Criteria The statutory review criteria for reviewing CON Applications for new nursing homes are found in section 408.035, Florida Statutes, and Florida Administrative Code Rule 59C- 1.036.1/ Each statutory and rule criterion is addressed below. Section 408.035(1)(a): The need for the health care facilities and health services being proposed There is a need for additional community nursing home beds in Nursing Home Subdistrict 6-5, Polk County. Both Lakeland Oaks and Eighth Florida’s CON applications seek to fulfill a portion of the published need for additional beds in Polk County. In addition to the published fixed-need pool, both Lakeland Oaks and Eighth Florida have stipulated to the need and performed their own needs assessment that verified the need for additional community nursing home beds in Nursing Home Subdistrict 6-5, Polk County. At present, Polk County has 24.7 nursing home beds per 1,000 residents. Even with the addition of 203 beds as projected by the fixed-need pool, population growth will cause Polk County’s bed ratio to decline to only 23.6 beds per 1,000 residents by the end of the planning horizon. Accordingly, there is a need for additional community nursing home beds in Polk County. Polk County has a large, fast growing elderly population. According to population data published by AHCA, from 2010 to 2014, the 65 and older population in Polk County grew by nine percent, which exceeded the statewide growth rate of six percent. For the time period 2014 to 2017, the 65+ population in Polk County is expected to grow at an even faster rate of 10 percent, which is substantial. Section 408.035(1)(b): The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant Polk County currently has twenty-four (24) nursing home facilities with 2,945 licensed beds. Polk County’s existing nursing home beds are highly utilized. For the 12-month period ending June 2014, Polk County’s existing nursing home beds had a total average occupancy rate of 90.29 percent. That occupancy rate is higher than the national rate and Nursing Home District 6’s average occupancy rate as a whole. At such high utilization, Polk County’s existing nursing home beds are not sufficiently available to Polk County residents. Further, Polk County’s existing nursing home beds are not adequate to meet the projected increase in demand for skilled nursing services in Polk County over the planning horizon. Eighth Florida proposes to locate its skilled nursing facility in Zip Code 33813, co-located with Florida Living Option’s existing assisted living facility. The need for additional community nursing beds in Polk County, however, is countywide and not specific to a particular zip code or assisted living facility. In contrast, Lakeland Oaks’ proposed project is located and designed to address the needs of Polk County residents as a whole with access designed to locate near a major hospital, and, as such, will better ensure access to short-term rehabilitation and long-term care services in Sub-district 6-5. Section 408.035(1)(c): The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care Both applicants go to great lengths to provide and improve their quality of care. Both applicants propose to use an electronic health record (EHR) system called Point Click Care (PCC). All of Florida Living Options’ facilities currently use PCC. Eighteen (18) of Greystones facilities use PCC, and, by the end of 2016, all Greystone facilities will use PCC. In addition to PCC, both Greystone and Florida Living Options use “Casamba,” a rehab-specific electronic medical record that enables the facilities to maintain electronic plans of care and track patients’ progress in real-time throughout their stay. Greystone and Florida Living Options have implemented Quality Assurance Performance Improvement (QAPI) plans in their facilities. The QAPI program is a rigorous program for the improvement of quality of care and overall performance. It addresses the full range of services offered by a nursing home and is designed to promote safety and high quality with all clinical interventions while emphasizing autonomy and choice in daily life for residents. A QAPI plan is now mandated for use in all nursing homes. Both Greystone and Florida Living Options initiated the QAPI program in their facilities before mandated to do so. Both Greystone and Florida Living Option have developed a range of policies and programs designed to promote quality of care in their respective facilities. Greystone, for example, develops “Centers of Excellence” within its facilities. A Center of Excellence has specialized expertise in treating patients with certain conditions such as stroke, pulmonary, cardiac, or orthopedics. Greystone has developed Centers of Excellence that relate to short-term rehabilitation and therapy, and partners with health systems to develop initiatives to reduce hospital readmissions. In addition to Centers of Excellence, Greystone develops other specialized programs in its facilities tailored towards common diagnoses of patients discharged from area hospitals. All Greystone facilities have an internal Risk Management/Quality Assurance program overseen by a committee that includes the medical director of each SNF. The committee meets on a monthly basis to assess resident care and facility practices as well as to develop, implement, and monitor plans of action. Greystone also routinely conducts on-site mock surveys of its facilities to ensure that they are in compliance with all federal and state laws and regulations. Greystone employs a variety of organization-specific quality improvement policies and programs, including the Believe Balance Assessment Tool, the Operation Make a Difference Policy, the Care Line Policy, and the Culture of Care Program, to promote quality of care within its facilities. The Believe Balance Assessment Tool is a scorecard that enables facilities to monitor their performance with respect to such criteria as patient satisfaction and clinical care. The Operation Make a Difference Policy is intended to help Greystone facilities identify opportunities for improvement and implement positive change to improve the facilities’ quality of care and patient well-being. Greystone’s Care Line is a toll-free number that is staffed 24 hours a day and allows Greystone to quickly address resident and/or family member concerns. Greystone’s Culture of Care program is designed to ensure that Greystone patients receive patient-centered care that meets their individual needs. Greystone also provides voluntary patient satisfaction surveys to its short-term rehabilitation patients upon discharge. For the period December 2014 to July 31, 2015, 92 percent of former residents indicated that they would recommend a Greystone facility to patients in need of short-term rehabilitation care. In sum, Greystone has developed strategies that help its facilities provide quality care. Florida Living Options is also working constantly to improve the quality of care in its facilities. Personnel in its facilities hold regular meetings with their hospital partners to track and reduce readmissions and work with hospitals to develop protocols for dealing with the diagnoses that result in most readmissions. Florida Living Options develops particular protocols for treating conditions that it sees and treats regularly in its nursing homes. Internally, they hold daily quality assurance meetings to discuss recent developments and immediate resident needs, and hold weekly “at-risk” meetings to evaluate particular cases and assure that the residents are being treated in the most appropriate manner. Florida Living Options’ facilities include physician treatment rooms in their nursing homes, which encourage physicians to come to the nursing home more often and to examine patients regularly. In addition, Florida Living Options has Advanced Registered Nurse Practitioners in each of its buildings to provide enhanced nursing services as directed by the doctor. In order to provide for each resident’s specific needs, residents in Florida Living Options’ facilities are fully evaluated and an individual care plan is prepared immediately upon admission, together with a discharge plan that identifies anticipated discharge so that care can best prepare residents for that event. Finally, Florida Living Options continues to follow a discharged resident to confirm that they are doing well and access any continuing needs. Both applicants propose rehabilitative facilities and equipment for its residents. Eighth Florida proposes to equip its facility with state of the art HUR equipment with the capability to transmit patient performance directly to the Casamba electronic records program. The equipment can be used for strength conditioning, transfer improvement, and balance improvement, among other things. Florida Living Options has developed specific protocols for treating rehabilitative conditions. Eighth Florida’s therapy gym will include two types of “zero G” devices: ceiling track and hydro track. These devices allow persons who are not weight bearing (or who are partially weight bearing) to develop strength and balance without having to put all of their weight on their legs. Two additional specific pieces of equipment proposed for Eighth Florida include a VitaStim device that provides electrical stimulation that helps a person relearn how to swallow, and a device called Game Ready. Game Ready is popular with football trainers and orthopedic patients that use ice and pressure to reduce swelling and pain around elbow and knee joint replacement sites. Greystone outfits the gyms in its skilled nursing facilities with a variety of rehab equipment, including high-low tables, mats, hand weights, leg weights, and modern strengthening machines. In addition, many Greystone SNFs have additional high-end, state-of-the-art equipment such as the AlterG and Biodex. The AlterG is an anti-gravity treadmill that enables patients with weight-bearing restrictions to use their muscles, preventing disuse atrophy. A Biodex is used for balance re-training. If approved, Lakeland Oaks proposes to have separate therapy gyms for its short-term rehabilitation and long-term care programs. By having two therapy gyms, Lakeland Oaks would be able to offer therapy services tailored to both patient populations’ needs. In contrast, Eighth Florida proposes to have one centralized therapy gym for its entire facility. Although quality may be measured by many metrics, the five-star rating system published by the Centers for Medicare and Medicaid Services (CMS) has become the most commonly used measure of quality among nursing homes. CMS is the federal agency that oversees the Medicare and Medicaid programs. CMS developed the five-star rating system for nursing homes in 2008. The ratings are scaled on a statewide basis and provide a mechanism to compare nursing homes within a state. Only 10 percent of nursing homes in a state receive a five-star rating. Seventy percent receive a two through four-star rating. The bottom 20 percent receives a one-star rating. A nursing home’s score is derived from a variety of criteria, including the results of its health inspection surveys, staffing data, and quality measure scores. A nursing home’s star rating is available on the CMS Nursing Home Compare website. As of July 2015, Greystone’s average star rating for its Florida facilities was 3.3 stars, which is above average. For the same time frame, Eighth Florida’s average rating was 2.6 stars or slightly below average. Further, several Greystone facilities, including The Club Villages, received five-star ratings. Greystone has also received other quality-related awards. In 2015, seven skilled nursing facilities operated by Greystone in Florida received the American Health Care Association National Quality Award Program Bronze Award. The Bronze Award is awarded to SNFs that have demonstrated their commitment to quality improvement. In addition, Greenbriar Rehabilitation and Nursing Center, a Greystone facility located in Bradenton, Florida, was awarded the Silver Award in recognition of its good performance outcomes. In contrast, only one Florida Living Options’ skilled nursing facility has received the Bronze Award. Florida Living Options explained that it decided not to pursue additional bronze awards believing that these awards reflect more of a paperwork compliance than an actual measure of quality. The greater number of awards received by Greystone, however, has not been ignored. Section 408.035(1)(d): The availability of resources, including health personnel, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation Lakeland Oaks’ total project costs, as reflected in Schedule 1 of its CON application, are $22,877,084. The total project costs are based upon a detailed budget and workpapers underlying the numbers contained in the financial schedules to Lakeland Oaks’ CON application. Because of its size, Greystone is able to purchase equipment at a lower cost than other smaller providers. The project costs include $1.2 million for equipment. The equipment list is based upon consultation with Greystone’s purchasing department and identification of what items are needed, along with the cost of those items. The project costs set forth in Lakeland Oaks’ Schedule 1 are reasonable and appropriate. Schedule 2 of Lakeland Oaks’ CON application sets forth an accurate and reasonable listing of Lakeland Oaks’ capital projects (i.e., only the proposed Lakeland Oaks SNF). Schedule 3 of Lakeland Oaks’ CON application identifies the source of project funds, and reflects the two sources included in Schedule 2: cash-on-hand and non-related company financing. Based on the audit of the parent organization of Lakeland Oaks, Greystone has a large amount of cash-on-hand, totaling $21,972,271. This greatly exceeds the projected $4,575,414 cash-on-hand needed for the project. With respect to non-related company financing, Lakeland Oaks included a letter from The Private Bank, an outside lender that previously has worked with Greystone in the financing of its skilled nursing facility projects. The letter indicates the bank’s interest in funding the Lakeland Oaks project. Greystone previously has obtained approximately six mortgages from this outside lender to acquire properties and develop projects. The lender has never declined to finance a project proposed by Greystone. The lender typically funds between 75 and 80 percent of the cost of a project. Lakeland Oaks will be able to obtain the necessary outside financing to fund the remainder of the cost of the Lakeland Oaks project. Lakeland Oaks’ projected staffing for its facility is set forth on Schedule 6A of its CON application. In projecting its staffing, Greystone considered its other skilled nursing facilities that are comparable in size to Lakeland Oaks and the projected payor mix of Lakeland Oaks. Facilities with higher Medicare populations, such as the proposed Lakeland Oaks facility, generally require higher levels of staffing in light of the acuity of Medicare patients recently discharged from hospitals. In addition, Medicare patients often require physical therapy services. Lakeland Oaks specifically considered the higher resource utilization required by Medicare patients in developing its projected staffing. Additionally, Lakeland Oaks considered the needs of managed care patients and long-term Medicaid patients in connection with its projected staffing. To calculate the projected wages, Lakeland Oaks considered the actual wages paid at comparable Greystone facilities, adjusted those wages using a Medicare wage index that accounted for inflation, and utilized the wage index applicable to Polk County facilities. The projected staffing, and the annual salaries associated with staffing the facility, are reasonable and appropriate. Lakeland Oaks will be able to staff the facility at the projected salaries. While Florida Living Options explained its recruitment program and generous benefits package to attract qualified employees, its proposed funding is unconvincing. Schedule 3 of Eighth Florida’s CON application shows that Eighth Florida proposes to fund its project with $250,000 cash-on-hand and $24,452,400 in related company financing. Schedule 3 does not reflect any non-related company financing. The CON application requires an applicant to attach proof of the financial strength to lend in the form of audited financial statements. The only audited financial statement Eighth Florida included in its application is the financial statement of the applicant entity, which reflects only $250,000 cash-on-hand. Eighth Florida omitted the audited financial statements of any related entity that would reflect the ability to fund the approximately $24 million to be obtained from the related party. As a result, Eighth Florida failed to prove its ability to fund the project, and the project does not appear to be financially feasible in the short term. While there was a letter within its application discussing the possibility of outside financing, Eighth Florida’s CON application is premised upon funding by affiliate reserves. Indeed, Schedule 1, lines 32-41, indicates that information pertaining to outside financing is inapplicable because the project is 100 percent funded by affiliate reserves and no fees or interest charges are anticipated. If Eighth Florida had proposed outside financing, it would have had to complete those lines of the application. Section 408.035(1)(e): The extent to which the proposed services will enhance access to health care for residents of the service district While both applicants argue that their proposed projects will improve access to health care for residents of Subdistrict 6-5, Lakeland Oaks’ proposed project will better enhance access. Eighth Florida’s zip code analysis and focus on serving residents of Hawthorne Village is myopic when compared to Lakeland Oaks’ proposed project designed to provide access to Polk County as a whole. Section 408.035(1)(f): The immediate and long-term financial feasibility of the proposal Schedule 3 of Lakeland Oaks’ CON application sets forth an accurate and reasonable source of funds to develop the project. As previously explained, Greystone is financially capable of funding the project, partially from cash-on-hand and partially from outside financing. The project is financially feasible in the short term. Lakeland Oaks’ projected utilization of its skilled nursing facility is reflected on Schedule 5 of its CON application. The projected utilization is reasonable and achievable. Greystone has been able to achieve a high rate of utilization at The Club Villages in a short period of time. Greystone also has a process to inform hospitals and physicians of its skilled nursing services, including the placement of clinical liaisons in hospitals and physician offices. Greystone also enjoys a good reputation that serves to attract patients, including specifically Medicare patients, to its facilities. Finally, the Lakeland Oaks facility will house long-term care residents, which generally are easier to attract to a facility than patients in need of short-term rehabilitation. With regard to long term financial feasibility issues, Schedule 7 of Lakeland Oaks’ CON application sets forth revenues based on patient days and an assumed payor mix. The payor mix assumptions and projected revenues are accurate and reasonable. The assumed payor mix is based on the experience of other Greystone facilities. Specifically, Lakeland Oaks projects in its second year of operation 7.96 percent self-pay patient days; 29.2 percent Medicaid days; 41.59 percent Medicare Part A days; 15.04 percent “Other Managed Care” days. Medicare Advantage, or Medicare Part C, accounts for 90 percent of the “Other Managed Care” days. Finally, Lakeland Oaks projects 6.19 percent in “Other Payer” patient days, including VA and hospice patients. Based on Greystone’s experience at other, similar facilities, the forecast is reasonable. Schedule 8 of Lakeland Oaks’ CON application sets forth its projected income statement for the facility, including total revenues and expenses. For year two of operations, Lakeland Oaks will have a projected total net income of $1,997,665. This is an accurate and reasonable projection, and the project will be financially feasible in both the short-term and long-term. With regard to the reasonableness of Lakeland Oaks’ fill rate, Greystone facilities have experienced an average occupancy in excess of 91 percent for the years 2010-2013. Greystone has demonstrated the ability to obtain a 94 percent occupancy level in many of its facilities, and it is reasonable to project that it will be able to achieve the 94-percent occupancy projected for the Lakeland Oaks facility within two years. Eighth Florida’s expert, Sharon Gordon-Girvin, agreed that Lakeland Oaks’ projected 94-percent occupancy is achievable. Lakeland Oaks’ projected Medicare census is in line with the Medicare population served by Greystone at its other facilities, including a 150-bed home in Miami-Dade County (39 percent Medicare), a facility in Marion County (42 percent Medicare) and The Club Villages (83 percent Medicare). Eighth Florida’s own expert, Ms. Gordon-Girvin, prepared three CON applications for Greystone that reflected substantial levels of Medicare utilization and did not object to the projected Medicare population. Additionally, CMS data shows that Polk County has a high number of Medicare beneficiaries in comparison to the entire State of Florida, with 119,643 Medicare beneficiaries. Polk County is ranked in the top 10 counties in Florida in terms of the number of Medicare Part A beneficiaries. Finally, a facility in Polk County, Spring Lake, which serves a substantial number of Medicare patients in need of rehabilitation services, experiences a Medicare utilization rate of 64 percent. In sum, Lakeland Oaks’ projected Medicare utilization is reasonable and achievable. Lakeland Oaks projected $150,000 for property taxes as part of its CON application. While Eighth Florida’s financial expert, Steve Jones, opined that Lakeland Oaks’ projected property taxes were understated, his analysis computed the property tax based on certain components of Lakeland Oaks’ projected project costs. Property taxes, however, are based on an assessed value of property, not the costs to construct a facility. Lakeland Oaks’ financial expert, Mr. Swartz, examined the 2015 property taxes at Greystone’s other facilities. The highest property tax rate for any of the Greystone facilities, when inflated forward one year, is $149,381.62. This is consistent with Lakeland Oaks’ projected property taxes of $150,000. Thus, the projected property taxes as set forth in the application are reasonable and accurate. In its CON application, Eighth Florida projected a year one loss of $1,646,400 and a year two profit of $502,945. However, Eighth Florida’s CON application reflects erroneous financial projections and financial deficiencies, some of which were acknowledged by Eighth Florida’s financial expert, Mr. Jones. First, Eighth Florida’s projected Medicaid rate is erroneous. Eighth Florida assumed an incorrect occupancy rate in calculating its Fair Rental Value Rate (FRVS) rate, which is the property component of the Medicaid rate paid by the State of Florida. Specifically, Eighth Florida assumed a 75 percent occupancy in year two of its operation, while the Medicaid allowable rate is 90 percent occupancy in year two. Eighth Florida’s financial expert, Steve Jones, acknowledged the error in the assumed Medicaid rate related to the occupancy factor. In addition, Eighth Florida will not qualify for principal and interest in its FRVS calculation. A provider must have 60 percent mortgage debt in order to receive principal and interest in its FRVS computation. Eighth Florida does not meet the 60 percent test because it relies upon related-party financing, which is not considered a mortgage. Further, Eighth Florida utilized an erroneous interest rate. Because it does not project any outside financing, nor a mortgage, it should have used the Chase Prime Rate, which is about 2.25 percent less than what Eighth Florida assumed in it Medicaid rate calculations. These errors are material in that they result in approximately $135,000 in overstated Medicaid revenue and overstated net income for year two, during which Eighth Florida’s financial schedules project a net profit of approximately $500,000. In response to the opinion that Eighth Florida would not be entitled to principal and interest in its assumed FRVS rate, Mr. Jones maintained that the financing of the project would qualify for treatment as a mortgage, even though the application is premised upon related-party financing. However, AHCA’s rate setting department concluded that borrowing from a related party against reserves, as proposed by Eighth Florida, cannot be considered a mortgage. Mr. Jones conceded that he had never seen AHCA recognize affiliated entity debt as a mortgage. Considering the facts and opinions offered at the final hearing, it is concluded that related party borrowing cannot be treated as a mortgage. Moreover, Schedule 1 of Eighth Florida’s CON application did not include any construction period interest. Lakeland Oaks’ healthcare financial expert, Ronald Swartz reasonably estimated that approximately $700,000-$750,000 in construction period interest was omitted from Eighth Florida’s project costs. As a result, Eighth Florida would require more cash-on-hand to fund the extra costs. This, in turn, affects the income statement, resulting in understated expenses and overstated net income. Mr. Jones acknowledged that construction period interest is normally included. In this application, he did not include that item based upon a cost/benefit analysis and his conclusion that the inclusion of construction period interest would not provide “useful” financial information. Based upon Generally Accepted Accounting Principles and relevant financial standards pertaining to the capitalization of interest, whether construction period interest should be included in financial projections generally turns on concepts of time and materiality. Here, the construction project will take nearly two years, and construction period interest will total approximately $700,000 to $750,000. Thus, construction period interest is material and the interest charge should have been included in Eighth Florida’s financial schedules. Next, Eighth Florida projected a utilization or “fill” rate that is higher than the fill rate Florida Living Options was able to achieve when it opened Hawthorne-Sarasota. A fill rate describes how quickly a facility reaches an anticipated occupancy level. It is appropriate to consider Florida Living Options’ prior history of filling its new facilities. With regard to Florida Living Options’ experience at Hawthorne- Sarasota, that facility reached 85 percent occupancy by the end of its second year of operation. The Sarasota facility had approximately a 35 percent occupancy level at the end of year one, which translates to a first year average occupancy of 16 or 17 percent. At the beginning of year two, it experienced approximately 43 percent occupancy. In contrast, Eighth Florida’s CON application projects an 89 percent occupancy level by month 11. Based on Florida Living Options’ experience in Sarasota, the projection is unreasonable. If Eighth Florida’s proposed facility fills at the same rate as the Sarasota facility, year two of Eighth Florida’s operation would result in a larger financial loss and a greater need for working capital. Given that, Eight Florida’s year two projected net income would actually become a net loss, and additional working capital would be needed. While Eighth Florida’s expert, Mr. Jones, sought to distinguish the Sarasota market from the Polk County market, nonetheless, it is relevant to examine the occupancy level Florida Living Options was able to achieve in connection with the opening of a new facility in the Sarasota market. The financial feasibility of a skilled nursing facility is an important consideration. Considering the issues surrounding Eighth Florida’s fill rate at the end of year one, construction period interest, and the erroneous Medicaid rate, it appears likely that Eighth Florida would experience a year two net loss, bringing into question the long-term financial feasibility of Eighth Florida’s CON application. Section 408.035(1)(g): The extent to which the proposal will foster competition that promotes quality and cost-effectiveness It stands to reason that approval of either application will foster competition due to the fact that additional nursing home beds with new amenities are proposed to be added in Polk County. The extent of that competition, however, is not evident, and the undersigned agrees with the determination of AHCA on page 93 of its State Agency Action Report submitted in this proceeding that “These projects are not likely to have a material impact on competition to promote quality and cost-effectiveness.” Section 408.035(1)(h): The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction The Florida Building Code (Building Code) governs the design and construction of skilled nursing facilities. Under the Building Code, a skilled nursing facility may be designed based on either an “institutional” design model or a “household” design model. To obtain AHCA’s approval of a proposed SNF, AHCA requires parties to designate which design model has been selected. An institutional design model involves centralized services. By contrast, the household design model involves decentralized services contained within a “neighborhood” or unit. Section 420.3.2.2 of the Building Code regulates the household design model, and requires that dining activity in social areas be decentralized and included within the resident household. Section 420.3.2.2.1 further provides that “each resident household (unit) shall be limited to a maximum of 20 residents.” Additionally, section 420.3.2.2.2 requires that two individual households be grouped into a distinct neighborhood with a maximum of 40 residents who may share the required residential core areas. Lakeland Oaks’ architectural expert, Bo Russ, and his firm, Architectural Concepts, created the schematic design used in Lakeland Oaks’ CON application. In addition, Mr. Russ and Architectural Concepts provided cost estimates, systems descriptions, and the construction timeline for the project. Architectural Concepts has worked with Greystone in the development of other skilled nursing facilities in Florida, including the design and construction of The Club Villages, The Club at Ocala, and The Club at Kendall. The design of The Club Villages is based on a hospitality model (i.e., the resident-centered culture change model). The social and dining areas of The Club Villages are located within individual neighborhoods. Each neighborhood has a private dining room. Patient rooms surround the dining area. The Club Villages includes a Bistro Restaurant located at the center of the facility for family members and guests. The Club Villages also has space for the provision of rehabilitation services, including two large gyms within the physical therapy suite. The facility has skylights throughout the structure and other features to retain residential elements. In preparing the architectural design for Lakeland Oaks’ proposal, Architectural Concepts incorporated certain aspects of the design of The Club Villages. The Lakeland Oaks design is based on the “institutional model,” but with certain embellishments intended to give the facility a “household,” residential feel. The proposed Lakeland Oaks facility is approximately 84,000 square feet. The facility has 10-foot ceilings, a residential-oriented interior design, residential lighting, residential furniture, a large porte cochere, a lobby area similar to The Club Villages, a Bistro, a central dining area within the community that is divided into four dining rooms with unique interior vernacular, a movie theater, a satellite therapy gym, offices for staffing, a separate Activities of Daily Living suite, a doctors lounge, and three nursing units. With regard to physical therapy services, the proposed Lakeland Oaks facility will include two large gyms at the center of the therapy suite, a private outpatient therapy entrance, a large classroom, and space for other ancillary services. The design will allow for a concierge approach to therapy to treat patients in need of those services. The proposed Lakeland Oaks facility is reasonably and appropriately designed for use as a skilled nursing facility, and promotes high quality of care. In developing the design of the facility, Mr. Russ considered the fact that Lakeland Oaks proposes to offer both short-term and long-term care. Greystone has developed two similar skilled nursing facilities, The Club at Kendall, a 150-bed skilled nursing facility, and The Club at Ocala, a 154-bed facility, both of which are similar in design to Lakeland Oaks. Greystone has received AHCA approval of the design and construction for both of those facilities. Lakeland Oaks’ proposed construction costs are $17,289,054, or $185 per square foot. The estimated construction costs are based on similar projects, including The Club at Ocala at $178 per square foot. The construction costs are reasonable and appropriate. The architectural plan, design, and features presented by Lakeland Oaks satisfy the architectural criteria applicable to skilled nursing facilities in Florida. The facility complies with all applicable construction, design, and life safety code requirements. Lakeland Oaks also presented a reasonable timeline for completion of the project. The timeline is based on Greystone’s prior experience in constructing similar skilled nursing facilities. Mr. Russ reviewed Eighth Florida’s architectural plans and schematics for conformity with applicable criteria. Eighth Florida’s architectural plans and schematics were prepared by Bessolo Design Group (Bessolo Group). Because of design flaws inconsistent with the Building Code, the architectural plans and design proposed by Eighth Florida and Bessolo Group should not be approved by AHCA. Eighth Florida’s proposed design will be reviewed by AHCA based on the provisions governing the institutional design model. The design fails to meet certain distance requirements found in the Building Code provisions governing an institutional design. Specifically, Florida Building Code section 420.3.2.1.2 (now renumbered as Building Code section 450.3.2.1.2) provides that the travel distance from the entrance door of the farthest patient room to the nurse’s station cannot exceed 150 feet. In addition, the distance from a patient room to a clean utility and soiled utility room cannot exceed 150 feet. Based on the schematic plan presented by Eighth Florida and Bessolo Group, the distance from the most remote patient room to the nurse’s station well exceeds 150 feet. In addition, the distance from the most remote patient room to the soiled/utility rooms well exceeds 150 feet. These flaws cannot be remedied without substantial design changes. In addition, the Eighth Florida/Bessolo Group design includes deficiencies related to smoke compartments, nourishment stations, and other items. These more minor flaws can be remedied without substantial changes. However, as to the 150-foot limit, Eighth Florida’s non-compliance makes the design a failed model. The facility cannot be approved in its current design. In order to be approvable, the facility would need to undergo a major redesign, including a change in the size and configuration of the building. This, in turn, would impact all of the financial assumptions contained in Eighth Florida’s CON application. In response to Mr. Russ’ opinions, Eighth Florida’s architectural expert, Kevin Bessolo, contended that the deficiencies related to the 150-feet distances from the patient room to the nurses station and soiled/clean utility areas were not fatal because the plan was based upon the “household model.” Mr. Besselo acknowledged that, if the design is considered to be “institutional,” then the travel distances would exceed the 150-foot distance requirements. Mr. Besselo also acknowledged that a skilled nursing facility can either be an institutional design model or a household design model, but not both. Mr. Bessolo further acknowledged that his position that the plan is approvable is contingent upon the design being considered under the household design model in accordance with the Building Code. Mr. Bessolo disagreed with the criticism offered by Mr. Russ regarding the 150-feet distance requirements because he contended that his design presents a household model. Eighth Florida’s schematic design, however, does not comply with the Building Code’s requirements for a household design model. Eighth Florida’s proposed building is divided into 30-bed neighborhoods that exceed the Building Code’s 20-bed maximum for the household design. In addition, Eighth Florida’s plan presents three households sharing a central services area. Finally, the dining area presented in the Eighth Florida plan is centralized, rather than decentralized as required for the household design model. Because the proposal does not qualify as a household model, AHCA should review it under the institutional plan provisions. In turn, Mr. Bessolo offered criticisms of Lakeland Oaks’ proposed architectural plan. These included issues related to the distance to soiled utility exceeding 150 feet, resident storage areas, central bathing area, no emergency food storage, smoke compartment issues, secondary exit issues, and the planned movie theater. However, unlike Eighth Florida’s major deficiencies related to the 150-foot distant limits from the nurse’s station and from the clean and soiled utility rooms, the criticisms offered by Mr. Bessolo are easily rectifiable by Lakeland Oaks without substantial change. I. Section 408.035(1)(i): The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent Greystone has a strong history of serving Medicaid patients in Florida. On a company-wide basis, 53.65 percent of all patient days in Greystone SNFs were provided to Medicaid patients during calendar year 2014. Lakeland Oaks plans to treat Medicaid patients at its proposed facility. In its second year of operation, Lakeland Oaks projects that almost 30 percent of its patient days will be Medicaid days. Additionally, if “dual eligibles” (i.e., patients with Medicare as a primary payer but also eligible for Medicaid) are taken into account, Lakeland Oaks’ provision of services to Medicaid patients will be even higher. Lakeland Oaks’ payor mix assumptions were based on Greystone’s actual experience at comparable SNFs in Florida and are reasonable. Eighth Florida projects in its second year of operation that approximately 40 percent of its patient days will be Medicaid days. As previously explained, that projection is questionable. The evidence at hearing showed that Hawthorne- Sarasota, the facility upon which Eighth Florida’s proposal is based, had only eight percent Medicaid utilization after one and a half years of operation. IV. Factual Summary The facts set forth above demonstrate that Greystone has proposed a well-funded, financially feasible, well-designed skilled nursing facility that will improve Polk County access to short term and long term skilled nursing care for residents of Polk County. Greystone has demonstrated a proven record of providing high quality of care and the ability to assure quality of care for the Lakeland Oaks proposal. In contrast, Eighth Florida’s application was largely focused on improving access to those services within a certain zip code and for residents of the Hawthorne Village community and not residents of Polk County as a whole. Greystone, Lakeland Oaks’ parent company, has a long, well-established history of providing high quality care at over two dozen skilled nursing facilities in Florida. On the other hand, Florida Living Options, Eighth Florida’s parent, only operates three skilled nursing facilities in Florida and does not have as extensive of a track record in providing high quality care. Moreover, Greystone has a well-established history of providing skilled nursing services to a large volume of Medicaid patients. On a company-wide basis, over 50 percent of Greystone’s patient days consist of Medicaid patients. Conversely, Hawthorne-Sarasota, the facility upon which Eighth Florida’s proposed project is based, had only eight percent Medicaid utilization in its first year and a half of operation, calling into question Eighth Florida’s projection of 40 percent Medicaid utilization in its application. Further, Eighth Florida has proposed to build a nursing home with questionable inter-company financing and uncertain financial feasibility. Eighth Florida’s facility design does not meet code requirements and is unlikely to be approved as proposed without substantial changes. Considering both applications and the facts submitted at the final hearing as outlined above, it is found that Lakeland Oaks’ CON application, on balance, best satisfies the applicable statutory and rule criteria.
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 approving Lakeland Oaks NH, LLC’s CON Application No. 10309 and denying Eighth Florida Living Options, LLC’s CON Application No. 10303. DONE AND ENTERED this 22nd day of February, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2016.
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
The Issue The information-gathering hearing was convened for the purpose of determining the impact of Lake County’s Order denying a rezoning application (“Rezoning”) for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23 (“PUD”), whether the denial of the rezoning application was unreasonable or unfairly burdened the real property subject to Petitioner’s rezoning application, and whether some modification of Petitioner’s proposed use of the property or adjustment to the denial of the rezoning application could be reached.
Conclusions For Petitioner: Cecelia Bonifay, Esquire Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 For Respondent: David Langley, Esquire Lake County Attorney’s Office 315 West Main Street Tavares, Florida 32778 A number of non-party participants appeared at the Zoom conference and were permitted to offer documents and testimony pursuant to limitations established in the November 4, 2021, Notice of Hearing Before a Special Magistrate.
Recommendation Based upon the foregoing Stipulated Findings, the Findings Adduced at Hearing, and the Public Comment, the undersigned concludes that the proposed Rezoning satisfies the requirements of the Lake County Comprehensive Plan and Land Development Code, that there is no reason related to transportation safety to deny the Rezoning, and that the denial of the Rezoning, under the circumstances presented here, is unreasonable or unfairly burdens use of the Property. Therefore, it is recommended that the Lake County Board of County Commissioners approve the application for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23, subject to the conditions previously agreed upon by Lake Nellie, and the following: Stormwater facilities shall be vegetated with native species where possible. Sidewalks shall be constructed within the Project and along the Project’s frontage on Lakeshore Drive and Royal Vista Avenue. In addition to the left turn lane for southbound traffic, Lake Nellie and Lake County shall examine the feasibility of a right turn deceleration lane into the Project for northbound traffic on Lakeshore Drive. If determined to advance safety on Lakeshore Drive, the right turn lane shall meet Florida Department of Transportation specifications for design and length for a 40 MPH road. Land necessary for the construction of a right turn deceleration lane shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. If Lake County determines in the future that a roundabout at the entrance to the Project would facilitate traffic flow and enhance safety, Lake Nellie, or its successor homeowners’ association or maintenance entity, shall donate land within its ownership and control to Lake County for use as right- of-way for the roundabout. That donation shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. DONE AND ENTERED this 18th day of January, 2022, in Tallahassee, Leon County, Florida. S E. GARY EARLY Special Magistrate 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2022. COPIES FURNISHED: Melanie N. Marsh, Esquire Lake County Attorney's Office Post Office Box 7800 Tavares, Florida 32778 Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 David Langley, Esquire Lake County Attorney Office 315 West Main Street Tavares, Florida 32778 Jennifer Barker, Interim County Manager Lake County, Florida 315 West Main Street Tavares, Florida 32778 Cecelia Bonifay, Esquire Akerman Senterfitt 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 Nicole Blumenauer, Esquire Lake County Attorney's Office 315 West Main Street Tavares, Florida 32778 Sean M. Parks, Chairman Board of County Commissioners Lake County, Florida 315 West Main Street Tavares, Florida 32778
The Issue The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida. The subject property is known as “Elmwood Subdivision”. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed. Mr. Maguire hired a surveyor and an engineer for the project. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood. Easement and drainage work on Elmwood was completed in 1979. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984. A copy of the engineering plans for Elmwood were provided to Clay County in 1978. Government Action Relied Upon by Petitioner. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property. Detrimental Reliance. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.
The Issue Whether Respondent discriminated against Petitioners in violation of the Florida Fair Housing Act (Florida FHA); and, if so, the relief to which Petitioners are entitled.
Findings Of Fact Sun Lake is an apartment complex located in Lake Mary, Florida. Ms. Pollock is the property manager of Sun Lake, and has been employed in this capacity for approximately seven years. Mr. Green is an African-American male. The brothers leased and resided in an apartment at Sun Lake from 2012 through July 31, 2017. Mr. Green asserted that Jude is disabled, however, no other evidence to support that assertion was provided. Mr. Green alleged that Respondent failed to provide Petitioners accommodations that were requested in December 2016: change their apartment locks to the brothers’ “own private locks”; stop the trash service pick-up to the brothers’ apartment; and establish a community garden within the Sun Lake property. It is undisputed that Respondent ceased the trash service pick-up, but the evidence was insufficient to support whether the apartment locks were or were not changed. There was insufficient evidence to support a finding of fact regarding the establishment of a community garden within the Sun Lake property.5/ Mr. Green suggested a December 2016 police report was fraudulent because a name on the report was incorrect, and he had not filed a police complaint regarding noise above their apartment. The evidence was insufficient to support a finding of fact on this allegation. Mr. Green admitted to withholding rent on several occasions as a method to have the requested accommodations secured. Ms. Pollack confirmed there was a valid lease agreement between Sun Lake and Petitioners. Further, she provided that Respondent did, in fact, stop the trash service pick-up to their apartment as Petitioners requested. Ms. Pollack lacked specific knowledge regarding whether Petitioners’ apartment door locks were changed, but offered that Respondent must maintain an apartment key. This is done in order to secure access to each apartment in a timely manner for health and safety reasons. Respondent’s maintenance staff would not enter any apartment without a specific request for service. Ms. Pollack provided the multiple dates on which Petitioners’ rental payments were late. Petitioners and Respondent became involved in eviction proceedings in circuit court. At some point, Petitioners and Respondent entered a settlement stipulation that Petitioners would vacate their apartment earlier than their lease agreement, and pay the rental fees and other associated fees to Respondent. Following Mr. Green’s testimony, and both the direct and cross-examination testimony of Respondent’s sole witness, Ms. Pollock, Mr. Green moved to dismiss the case. No credible evidence was presented that Respondent discriminated against Petitioners in any fashion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioners’ Petition for Relief in its entirety. DONE AND ENTERED this 21st day of May, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 21st day of May, 2019.
The Issue The issues are whether Respondent, Country Club Village MHP, Inc. (CCV Park), discriminated against Petitioner, Miguel A. Cotrich (Mr. Cotrich), based on his national origin in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Mr. Cotrich is entitled.
Findings Of Fact Mr. Cotrich is a Hispanic male,8/ who resided in CCV Park for approximately 29 months. Mr. Cotrich did not own the mobile home or the lot (number 56) on which it was placed; thus, he owed monthly rent to CCV Park and to the owner of the mobile home. Mr. Cotrich moved out of CCV Park in late May or early June 2011.9/ Rocio Harris, an Hispanic woman, who spoke Spanish, was CCV Park's manager during the majority of the time that Mr. Cotrich resided in CCV Park. Ms. Harris was well thought of and did her best as manager, but she did not collect monthly rent payments or enforce park rules uniformly. On June 5, 2009, Mr. Cotrich and Anna Maria Cotrich, his wife, executed a $10,000.00 Promissory Note (Note) to buy the mobile home located at lot 56 in CCV Park. The Note was between the Cotriches and Maria Gonzalez. The Note called for a $1,400.00 down payment and monthly installments of $500.00 beginning on July 1, 2009. Mr. Cotrich created a ledger to record the monthly Note payments he made on the mobile home (Petitioner's Exhibit 2). This ledger reflects he paid the $1,400.00 down payment and a $500.00 payment on January 3, 2009, five months before the Note was executed. Likewise, it also reflects five $500.00 payments for the trailer before the Note was executed. Simply by adding up the figures on Mr. Cotrich's ledger, the total comes to $10,600.00. This is $600.00 in over-payments. Mr. Cotrich did not disclose this overpayment during his testimony. Mr. Cotrich did not possess the title to the mobile home, nor did he produce any credible evidence that he was entitled to it. Mr. Cotrich's testimony contradicts the executed Note and his own written record of the amounts of payments. Neither Mr. Cotrich's testimony nor his ledger is credible. Mr. Cotrich allegedly paid Ms. Harris the monthly Note payments because he did not trust Ms. Gonzalez. Mr. Cotrich did not receive a receipt from Ms. Harris or Ms. Gonzalez for any payments made on the Note. His claim that he was working away from the mobile home and could not get to the office during its office hours to obtain such a receipt is not credible. Further, Mr. Cotrich's testimony that he paid someone other than the Note lender without obtaining a receipt from that recipient is not credible. In January 2011, Debra Hunter became CCV Park's manager following Ms. Harris' death. Ms. Hunter started collecting the rent payments on time and enforcing CCV Park rules. Her actions caused tension among those who were delinquent with their rent and/or not abiding by other park rules. Mr. Cotrich was always in arrears for his lot rent payment while Ms. Hunter was the manager. At some point Mr. Cotrich had one or two dogs (at least one of which was a pit bull dog) in his rented mobile home. CCV Park rules allow for one small (under 20 pounds) dog. Apparently Ms. Harris knew of the dogs, but did not charge Mr. Cotrich for having them. However, beginning in January 2011, when Ms. Hunter became the manager and was aware of the dogs, Mr. Cotrich was charged $16.00 monthly for having the two dogs ($8.00 per pet, per month). Charles Stevens, one of CCV Park's owners, credibly testified that he had a conversation with Mr. Cotrich about the pit bull dog(s). In that conversation, Mr. Stevens advised Mr. Cotrich that mean dogs (including pit bull dogs) were not (and are not) allowed in CCV Park. This was because there were children present, and there were insurance concerns. Mr. Stevens felt he was unable to make Mr. Cotrich understand the need to remove the dog(s). At some point, Mr. Cotrich approached Ms. Hunter and told her he wanted to sell or rent his trailer to his brother, who is Puerto Rican. Ms. Hunter objected to that proposal on the grounds that Mr. Cotrich owed past-due rent. Mr. Cotrich became loud and apparently yelled that Ms. Hunter did not want Puerto Ricans in CCV Park. Ms. Hunter's position to deny Mr. Cotrich's proposed tenant was based on the outstanding balance that Mr. Cotrich had with CCV Park. Following this verbal confrontation, Mr. Cotrich claimed he felt harassed by CCV Park management. Although Mr. Cotrich produced his medical records for hospitalization dates of January 8, January 10, and March 30, 2011,10/ there is nothing therein to substantiate that CCV Park or its management caused his physical circumstances. Mr. Cotrich, upon being discharged from the last hospitalization, went to a rehabilitation/nursing home facility. Mr. Cotrich testified he was not evicted from CCV Park, but he voluntarily left CCV Park in May 2011, because he felt his health was in jeopardy. Mrs. Cotrich completed her move out of CCV Park sometime in June 2011. CCV Park issued monthly receipts for payments it received. For the 29-month period that Mr. Cotrich claimed to reside at CCV Park, only 13 dated receipts were produced. (There were a total of 20 pages of receipts, but some were duplicative.) The receipts offered and accepted in evidence began in July 2009. All but one receipt had a monetary figure in the section "REMINDER OF OUTSTANDING CHARGES" at the bottom of each receipt. Ms. Hunter and Mr. Stevens both testified that CCV Park is 70 percent Hispanic. Mr. Stevens knows the rental market in Kissimmee, and he understands the Hispanic population has a very real presence in Kissimmee. CCV Park is a multi-cultural mobile home park. Since becoming the manager (while Mr. Cotrich lived there and after), Ms. Hunter has increased rental collections, enforced the park rules, and made CCV Park a nice place to live. CCV Park has instituted several after-school programs and activities that have apparently helped raise the children's grade-point averages in school. Mr. Cotrich presented Jess Jusino, his son-in-law, and Ernest Cotrich, his son and care-giver, as witnesses. The undersigned evaluated the testimony presented by these two witnesses and found it to be unpersuasive. Mr. Cotrich did not substantiate his claim of discrimination based on his national origin. The testimony and evidence demonstrate that Mr. Cotrich left CCV Park on his own volition and that he failed to pay rent in a timely manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Miguel A. Cotrich. DONE AND ENTERED this 28th day of August, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 28th day of August, 2012.
