The Issue The issue for consideration in this case is whether Respondent’s pari-mutual wagering occupational license number 1102786-1081 should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, was the state agency in Florida responsible for the licensing of racing dog kennel owners and trainers and the regulation of the pari-mutual dog racing industry of this state. Respondent, William Kohler, holds an unrestricted “U1” professional pari-mutual wagering occupational license, number 1102786-1081, and was, at all times pertinent, operating under that license as a greyhound trainer at the Sarasota Kennel Club, a pari-mutual wagering race grounds in Sarasota County, Florida. As a licensed trainer of greyhounds, Respondent was responsible for the custody, care, treatment and training of the greyhounds in his care, consistent with the mandate of the Florida Legislature relating to the humane treatment of animals as found in Section 550.2415, Florida Statutes. On or about February 25, 1996, Respondent and his assistant, Brad Adams, were dipping their dogs for flea infestation. During the course of the procedure, as Respondent was working with an animal by the name of Lisa’s Beauty, the dog became uncooperative and resisted being dipped. This procedure was being observed by Josephine Jenkins, also a licensed owner and trainer, who recalled seeing the animal careen off the fence surrounding the area and fall into the dip tank which contained a mix of water and chemicals intended to kill fleas. At hearing, Ms. Jenkins claimed she could not recall whether Respondent threw the dog against the fence or whether the animal got away from him. In a prior sworn statement made to Division investigators, however, she indicated that she saw Respondent hold the dog’s head under the dip and then beat it because it would not behave to his satisfaction. In her earlier statement, she related that she did not see Respondent throw the dog against the fence but only strike her with his open hand and throw her against the dip tub. In light of the consistency of her testimony it is found that Respondent did not throw the dog against the fence nor did he strike the dog with his fist but only with his open hand, and he did hold her head under the dip. In the opinion of Ms. Jenkins and Ms. Nelson, the weather was too cool for dog dipping on February 25, 1996. That same date, Ms. Jenkins also saw Respondent kick another dog which was in the turn out pen at the time. This kick was witnessed by Ms. Nelson who did not see any provocation for the kick. At the time, Respondent was wearing boots. Respondent denies abusing his dogs on the days in question or at any other time. He admits to fighting with his dog on February 25, 1996 because he felt it was necessary to treat them all for fleas which had come in on a new batch of dogs. Because of the infestation, he had to dip all the dogs. To leave one dog undipped would render the entire process worthless. All the dogs would be infested again in a short time. In order to dip the dog in question, he grabbed her by the collar and held her up against the fence so that he could spray her with a bomb. He admits he sprayed her ears but claims he covered her eyes and her mouth so the spray would not get inside. He admits to using sufficient force to overcome the animal’s resistance to being dipped. Respondent claims the weather was not inappropriate for bathing dogs. As he recalls, it was “barefoot and shorts” weather - somewhere around 65 to 70 degrees. Respondent also admits to breaking up a dog fight on February 25, 10996, but claims he did not intentionally kick a dog. He inserted his foot in amongst the dogs in an attempt to break up the fight, but he also claims he has never gone up to a dog and kicked it as discipline or in anger. Respondent claims he makes his living from training dogs and keeping them in good shape. He claims he cannot do that by abusing his dogs, but he admits he will use force to break up a dog fight. With regard to the dog in question, Lisa’s Beauty, she was examined by two veterinarians shortly after the alleged abuse, and neither found any evidence of mistreatment. Though this may indicate no noticeable damage was done, it does not establish that the misconduct alleged did not take place. Considering the testimony as a whole, the undersigned has considered the allegations by Respondent that the statement of Mr. Adams and the testimony of Ms. Nelson were colored by the fact that they were boy and girlfriend and Respondent had recently terminated Mr. Adams’ employment. However, it was evident that Ms. Jenkins’ testimony was given with great reluctance, and considering that she is a qualified and licensed trainer, her appraisal of the Respondent’s actions are given substantial weight. Whereas a layman might consider less than gentle treatment of an animal to be abuse, a trained professional has more insight into what is appropriate treatment, and testimony of such an individual which, as here, indicates abuse, cannot easily be disregarded. Taken together, the evidence of record shows that Respondent intentionally held the dog in question’s head under the surface of the solution, struck it on the head with his open hand, and kicked another dog in the stomach and ribs. Whereas the open-handed striking may not have caused unnecessary pain to the animals in issue, clearly the other actions did, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of pari-Mutual Wagering enter a final order suspending Respondent’s occupational license for a period of two weeks, and imposing an administrative fine of $200.00. DONE and ENTERED this 24th day of February, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Kohler 18456 Monet Avenue Port Charlotte, Florida 33948 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Deborah R. Miller Director Department of Business and Professional Regulation Division of Pari-Mutual Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent has held a pari-mutuel wagering occupational license (license number 0609951-1081) issued by Petitioner. At all times material to the instant case, Respondent and Steven Zenker were part-owners of a race horse (named Sixty- Five Roses) that Respondent and his wife, Deedre Johnson, trained at Pompano Park. Pompano Park is a harness racing facility operated by Pompano Park, Inc., the holder of a pari- mutuel permit authorizing it to conduct harness racing in the State of Florida. In April of 1997, Sixty-Five Roses sustained an injury while racing at Pompano Park. The horse was treated over a three-day period (April 12 through April 14, 1997) by Dr. Jonathon Cohen, a veterinarian employed by Dr. Paul R. Plante and Associates (PRPA). The total charge for the veterinary services rendered by Dr. Cohen was $257.00. On April 25, 1997, PRPA sent Ms. Johnson and Mr. Zenker separate bills, each for $128.50 (one-half the total charge). Ms. Johnson's bill was sent to her and her husband's Vernon, New York address (where they reside from the end of April until November each year). The bills indicated that "[a]ny account with an outstanding balance on the 25th of the month [would] be charged a 1.5% late fee or a minimum $5.00 rebilling charge." On or about May 5, 1997, Mr. Zenker paid PRPA the $128.50 he had been billed. The $128.50 that PRPA had billed Ms. Johnson, however, was not paid. PRPA sent Ms. Johnson a statement each month requesting payment. 1/ In or around November or December of 1999, Dr. Cohen, during an encounter with the Johnsons at Pompano Park, handed them a copy of the last monthly statement that had been sent and told them that they needed to make payment. Not having received any payment from the Johnsons, in early 1999, PRPA filed suit against Respondent in Broward County Court Case No. CONO 99-0010 to recover monies owed for the veterinary services provided by Dr. Cohen on April 12 through April 14, 1997, in connection with the treatment Sixty-Five Roses. On March 2, 1999, the following Default Judgment was entered in Broward County Court Case No. CONO 99-0010 against Respondent: This action having come on for consideration, and it appearing to the court the above-named Defendant [Respondent] was duly served with statement of claim and it appearing further that the said defendant failed to appear in said action and the court finding that the said Defendant is justly indebted to the Plaintiff in the sum of $244.50. It is therefore considered, ordered and adjudged that the said Plaintiff, Dr. Paul Plante and Associates, do have and recover from said Defendant the sum of $128.50 for damages, besides the sum of $116.00 for costs of this suit, and the sum of $0 for interest, all of which shall bear interest at the rate of 10% for the current year and thereafter at the prevailing rate per year as provided for by Florida Statute, for all of which let execution issue. Respondent has not made any payments to PRPA to satisfy this judgment, nor has he sought to have the judgment set aside.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violation alleged in the Administrative Complaint and suspending his occupational license "for a period of no less than 10 days and continuing until the Respondent provides proof that he has satisfied his outstanding financial obligation" to PRPA. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2001.
The Issue Whether Respondent Robin Audifredd d/b/a St. Francis Place a/k/a Family Ties (Respondent) operated an assisted living facility without a required license and, if so, what is the appropriate penalty.
Findings Of Fact Respondent is the sole owner of St. Francis Place. She has never done business as "Family Ties, ACLF, Inc." At all pertinent times, Respondent held a license from the Florida Department of Business and Professional Regulation to operate St. Francis Place as a boarding home. Respondent's license to operate St. Francis Place as a boarding house allows up to 16 residents. Respondent provides non-transient housing for her residents. During pertinent times, there were approximately 13 residents housed at St. Francis Place. Some residents of St. Francis Place have conditions such as alcoholism, dementia, schizophrenia, manic depression, memory loss, and head trauma. Most of the residents of St. Francis Place were placed by other agencies, such as the United States Veterans Administration (VA). In addition to housing residents for pay, at the time of the hearing, Respondent was providing housing to three former homeless residents free of charge. According to the Complaint, Respondent was operating St. Francis Place in a manner that required a license from the Agency as an ALF because she was providing "personal services"2/ to one or more residents who were not related to Respondent. A license from the Agency is not required for facilities that provide "personal services" to no more than two non-relative residents who do not receive optional state supplementation, if the owner or renter of the facility resides at the facility. See Conclusions of Law 65, infra. According to Respondent, she did not need to be licensed as an ALF because she resided at St. Francis Place and only provided "personal services" to one non-relative resident, who was not receiving optional state supplementation. There is no evidence that any resident of St. Francis Place was receiving optional state supplementation during the pertinent time period. Respondent owns the building located at 1030 Jo Jo Road, Pensacola, Florida, from which she operates St. Francis Place. Respondent also owns a home at 425 Belle Chase Way, Pensacola, Florida. According to Respondent, she "resides" at both 1030 Jo Jo Road and at 425 Belle Chase Way, in Pensacola, Florida. Respondent testified that she actually spends more time at 1030 Jo Jo Road, where St. Francis Place is located. Petitioner's employees provided testimonial evidence to the effect that Respondent spends a great deal of time at St. Francis Place. Their testimony supports a finding that Respondent spends three or four nights a week at St. Francis Place. Despite the evidence showing that Respondent spends a lot of her time at St. Francis Place, it is found that Respondent's residence is 425 Belle Chase Way, Pensacola, Florida, rather than 1030 Jo Jo Road, based upon the following findings which are supported by clear and convincing evidence: Respondent claims homestead exemption at 425 Belle Chase Way. Respondent receives her phone bill at 425 Belle Chase Way address. In 2009, Respondent's address was listed as 425 Belle Chase Way on the title listing Respondent as a co-owner of her mother's motor vehicle. Respondent had no regular room at St. Francis Place. Rather, she either slept on a couch near the main entrance or on a couch in a back room. Although Respondent would also occasionally sleep in a room set aside for residents when there was a vacancy, Respondent had no regular room at St. Francis Place to sleep or keep her clothes. In February of 2009, Respondent's attorney in Respondent's divorce proceedings listed Respondent's address as 425 Belle Chase Way. Prior to February 2010, the Florida Department of Motor Vehicles and Public Safety (DMV) listed Respondent's address as 425 Belle Chase Way. On February 13, 2010, the DMV issued Respondent a duplicate driver's license indicating that her address was 425 Belle Chase Way. By the time of the final hearing, the address listed on Respondent's Florida driver's license had been changed to 1030 Jo Jo Road. The change of address from 425 Belle Chase Way to 1030 Jo Jo Road was made on April 8, 2010, just five days prior to the final hearing. Despite the recent change, Respondent testified that she did not know what address was listed on her driver's license. That testimony was not credible. Neither was Respondent's testimony that she "resided" at St. Francis Place. The phone number and address for St. Francis Place is listed in the Pensacola area 2009 AT&T Real Yellow Pages (Yellow Pages) under the heading "Assisted Living." At the final hearing, Respondent explained that she never authorized the listing and has contacted Yellow Pages and asked them to remove the listing. Respondent's testimony in that regard is undisputed, and it is found that Respondent did not authorize St. Francis Place to be listed in the Yellow Pages under the heading "Assisted Living." On March 25, 2009, a site visit of St. Francis Place was conducted by the Medicaid Fraud Unit of the Florida Attorney General's Office. The next day, on March 26, 2009, the Agency for Health Care Administration conducted a survey of St. Francis Place. The undisputed testimony clearly showed that, when the site visit and survey were conducted, there was one resident, identified as "G. T.," who was totally contracted and required assistance with daily living such as bathing, dressing, feeding, and taking medications. Respondent admits, and it is found, that Respondent and her employees provided "personal services" to G. T. within the meaning of applicable ALF licensing laws. G. T. is a resident who has had multiple sclerosis for many years. Respondent has known G. T. for over 16 years. G. T. had been a resident of St. Francis Place since it first opened its doors approximately six years prior to the date of the final hearing. The Agency was aware that G. T. was a resident of St. Francis Place and was receiving personal services prior to the March 2009, site visit and survey. There is no indication, however, that the Agency took any action prior to March 2009, to alert Respondent that she was considered to be operating an ALF without a license. Katherine Cone and Norma Endress were members of the teams who conducted the site visit and survey of Respondent's St. Francis Place facility on March 25 and March 26, 2009, respectively. During her visit on March 25, 2009, Ms. Cone believed that resident G. T. was not receiving proper care and arranged for her transport to a local hospital. G. T. was treated and released back to St. Francis Place. According to Ms. Endress, who saw G. T. the very next day, she observed no demonstrated harm to any resident at St. Francis Place. The evidence is insufficient to conclude that G. T. was harmed while a residing at St. Francis Place.3/ After the site visit and survey, both Ms. Cone and Ms. Endress believed that, in addition to the personal services provided to G. T., there was evidence that staff at St. Francis Place was providing personal services in the form of assistance in administering medications or filling pill organizers for other residents. The evidence presented at the final hearing, however, was insufficient to show, clearly and convincingly, that personal services were rendered to other residents. The insufficient evidence included: Photographs and the surveyors' recollections of pill reminder or pill organizer boxes that looked as though they were full of medications; Photographs and the surveyors' recollections of medication containers stored in a centrally located medication cart with wheels; Photographs and Ms. Cone's recollection of documents in folders above the medication cart containing information related to transportation and outside services for residents such as pharmacies and transportation companies. Ms. Cone's testimony that one of Respondent's employees, Kathleen Wentworth, told her at the time of the site visit that she maintained pill organizers with medications for several residents, and that Ms. Wentworth had signed a statement to the effect that staff at St. Francis Place administered medications to residents. Ms. Endress' testimony that one of the residents told her that staff at St. Francis Place had filled his pill reminder box. The evidence was insufficient because it was not further supported. Respondent and her testifying employees explained, and other evidence indicated, that the medication cart remained unlocked and was accessible so that residents could retrieve their own medications. There was no testimony from a St. Francis Place resident, employee or Respondent, or anyone else with actual knowledge, indicating that either Respondent or her employees ever assisted any resident other than G. T., with their medications. As far as Ms. Cone's hearsay recollection of what Ms. Wentworth told her, Ms. Wentworth testified at the hearing that the conversation did not occur. In addition, while Ms. Cone remembered a written statement signed by Ms. Wentworth, no such document was entered into evidence. Finally, photographs and Ms. Cone's recollection of folders with documents about services available from other vendors, such as pharmacies or transportation providers, did not show that Respondent was providing personal services to her residents. According to Ms. Endress, prior to leaving St. Francis Place after the site visit on March 26, 2009, she informed Respondent that Respondent was operating without the requisite ALF license, and that Respondent would be hearing from the Agency within 10 days. In contrast, Respondent testified that one of the Agency's employees, Ms. Klug, told her that she could "care for two people without an ALF license," and that Ms. Endress had given her similar assurances. Consistent with Ms. Endress's recollection, the Agency sent a letter to Respondent dated March 27, 2009, which informed Respondent that the Agency "considers you to be operating as an Assisted Living Facility (ALF) without being licensed." Considering that letter, together with the recollection of Ms. Endress, and the comparative credibility of the witnesses testifying on this point, it is found that, while one or more Agency employees informed Respondent that there was an exception to the AFL license requirements, Ms. Endress informed Respondent on March 26, 2009, that Respondent needed an ALF license, and that Respondent would be hearing from the Agency within ten days. The Agency's letter mailed to Respondent on March 27, 2009, stated in its entirety: Dear Ms. Audiffred, You are hereby notified that the Agency for Health Care Administration considers you to be operating as an Assisted Living Facility (ALF) without being licensed. Based on Section 429.14(1)(m), Florida Statutes (Fla. Stat.), it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license under Chapter 429, Part I, F.S. Section 429.02(6), Fla. Stat., defines an ALF as "any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator." The statute provides an exemption from licensure for not more than 2 adults who do not receive optional state supplementation (OSS) when the person who provides the housing, meals and personal services owns or rents the home and resides therein. This exception can be found in Section 420.04(2)(d), Fla. Stat. Based on evidence of unlicensed activity, the Agency intends to proceed with all available legal action, including bringing injunctive proceedings against you in a court of competent jurisdiction, to insure that you immediately cease and desist from offering these services. Further, Section 429.19(7), Fla. Stat., provides that "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day". [sic] If you believe you are not operating as an ALF in violation of law as described, you may submit in writing any information which would demonstrate that to the Agency within 24 hours of receipt of this notice. Any information you wish to have considered by the Agency must be actually received within 24 hours of your receipt of this Notice of Violation. If you have any questions, you may reach me at 850-922-8822. The letter was signed by Barbara Alford, R.N., B.S.N., Field Office Manager, and was copied to Alberta Granger, Assisted Living Unit Manager, and to the Regional Attorney. The fines set forth in the Complaint are premised upon penalties accruing at the rate of $1,000 per day from the day after the Agency's March 27, 2009, letter to Respondent, through July 21, 2009, when the Agency found that G. T. was still residing at Respondent's facility. According to paragraph 13 of the Complaint, "pursuant to § 408.812, Fla. Stat. (2009), the Agency notified the Respondent by certified mail that the facility was in violation of Florida Law on March 27, 2009." The Agency's March 27, 2009, letter, however, does not refer to section 408.812, contains a number of wrong citations to the law, and is equivocal on the issue of whether the Agency was actually requiring Respondent to cease and desist. The law in effect in March 2009 when the letter was written was the 2008 version of Florida Statutes, not the 2009 version referenced in the Complaint.4/ The first paragraph of the March 27, 2009, letter refers to section 429.14(1)(m), Florida Statutes, for the proposition that "it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license. " There is, however, no section 429.14(1)(m) in either the 2008 or 2009 version of section 429.14. The next statutory reference in the letter is in the second paragraph which refers to section 429.02(6) for the definition of ALF. Both the 2008 and 2009 versions of section 429.02(6), however, define "chemical restraint," not ALF. Although, further down in the second paragraph, the letter correctly refers to section 429.04(2)(d), for the exception where no license is required; the third paragraph of the letter erroneously refers to section 429.19(7) for the quote "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day." That language does not appear in either the 2008 or 2009 version of section 429.19, and has not appeared in chapter 429 since 2006. In fact, instead of providing for a $1,000 per day fine, section 429.19(7), Florida Statutes (2008), in effect on the date of the letter, provides: In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3)(c) to verify the correction of the violations. A provision for the imposition of a $1,000 per day fine from the date of notice does not appear in either the 2008 or 2009 versions of chapter 429. Rather, the authority to impose a $1,000 per day fine for operating an ALF without a license which was in effect in March 2009, when the letter was written is found in section 408.812(4), Florida Statutes (2008), which provides that "[a]ny person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance." Although the Complaint, served approximately 9 months after the letter, refers to section 408.812, the letter does not even mention chapter 408. In addition, the actual language of section 408.812(4) differs from the quote in the letter from an old version of section 429.19(7) that was no longer in effect. Aside from being inaccurate on the law, the letter does not explain why the Agency "considers" Respondent to be operating an ALF without a license, or what aspects of Respondent's operations required her to need a license beyond her license to operate a boarding house. Even though the letter fails to describe which aspects of Respondent's operations violate the law, and does not set forth the referenced "evidence of unlicensed activity," the letter advises Respondent that she may submit information to the Agency within 24 hours to demonstrate that she is "not operating an ALF in violation of law as described." Additionally, although suggesting that the Agency intends to proceed with legal action to insure that Respondent "cease[s] and desist[s] from offering these services," the letter does not identify which services or tell Respondent to stop operations. In addition to giving Respondent time to provide the Agency with information that she is not in violation of the law, the letter advises Respondent of the exception to the requirement of a license for not more than 2 adults "when the person who provides the housing, meals and personal services owns or rents the home and resides therein." While it has been found that Respondent did not actually reside at St. Francis Place, it is further found that Respondent believed that she could care for two patients without an ALF license as mentioned in the letter. Respondent received the Agency's March 27, 2009, letter on or about April 1, 2009. Within 24 hours after receiving the letter, Respondent sent the Agency an undated written response addressed "To Whom it May Concern." Respondent's written response mentioned that she had discussed with Ms. Endress, the one resident that they "give care to" and that Ms. Endress had advised, "Well legally you can take care of two people without a license." Respondent's written response further reported that a representative from the VA had suggested to several of Respondent's residents that they should move out. Respondent's written response also advised that a number of visits and surveys of St. Francis Place had been conducted in March 2009, by various agencies, including the VA, the Medicaid Fraud Unit from the Florida Attorney General's Office, the Florida Department of Children and Families, and the Agency. The last paragraph of Respondent's written response states: St. Francis Place is a liscenced [sic] non-transient rooming house and the arrangements provided by our business is stated below. The renters residing at St. Francis Place are responsible for their own medications, laundry, and living quarters. As a non-transient rooming house and being in operation for the past six years, we have always encouraged our renters to maintain their own independence. Six of the thirteen renters have their own Florida drivers liscence [sic]. Several of the renters attend school or maintain employment. Several renters perform odd jobs for pay at St. Francis Place, such as yard work, sweeping porches, or taking out trash etc. Monthly Rent includes: three meals a day accessible laundry room transportation upon request utilities garbage service use of telephone cable. On July 21, 2009, surveyors from the Agency once again visited St. Francis Place and observed that G. T. was still residing there and receiving personal services. Sometime after July 21, 2009, the Florida Department of Children and Families moved G. T. from St. Francis Place to a facility known as the "Villas" in an Alzheimer's lock-down unit. The Agency never sought an injunction to force Respondent to cease operating St. Francis Place. There is no evidence that the Agency suggested to Respondent corrective measures or actions that she could take to comply with the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order finding that Respondent Robin Audifredd d/b/a St. Francis Place5/ operated an assisted living facility without a license in violation of section 408.812, but imposing no administrative fine or penalty. DONE AND ENTERED this 6th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 6th day of May, 2011.
The Issue The issue is whether Proposed Florida Administrative Code Rule 61D-2.026(4) and (6) is an invalid exercise of delegated legislative authority, pursuant to sections 120.52(8) and 120.56(1)(a), Florida Statutes.
Findings Of Fact Pursuant to chapter 550, Florida Statutes, Petitioner Second Chance operates jai alai games at its facility in Marion County, and Petitioner WFA owns and operates a greyhound permit and summer jai alai permit at its facility in Miami-Dade County. Petitioner WFA also indirectly owns a summer jai alai permit at the Miami Jai Alai in Miami-Dade County and owns partial interests in two jai alai permits operated at the Dania Jai Alai facility in Broward County. Pursuant to chapter 550, Intervenor owns and operates a jai alai permit at its facility in Seminole County, where it conducts live jai alai permits. Petitioners and Intervenor are regulated by the proposed rules that they challenge in these cases. Proposed rule 61D-2.026(4) (the Court Rule) provides: Jai alai games must be conducted on a three-walled court meeting the following requirements: The side wall must be at least 175 feet long and at least 35 feet in height; The front wall and back wall must be at least 35 feet in width and height; The front wall must be made of granite. All courts must have sufficient overhead coverage to ensure for the operation of scheduled performances. All courts must have a live viewing area for games. Proposed rule 61D-2.026(6) (the Roster Rule) provides: "Jai Alai permit holders must utilize a rotational system of at least eight different players or teams." The rulemaking authority cited for the Court Rule and the Roster Rule is sections 550.0251 and 550.105(3) and (10)(a). The law implemented cited for the Court Rule and the Roster Rule is sections 550.0251, 550.105, and 550.70.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO 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 19th day of March 1996.
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
