The Issue Whether petitioner's request for reimbursement for review of fees for hospitalization was timely and, if so, whether the fees assessed against him should be reduced?
Recommendation It is, accordingly, RECOMMENDED: That the agency adopt the recommended order set out in the attached transcript as its final order in this matter. DONE and ENTERED this 6 day of February, 1992, in Tallahassee, Florida. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Jeffrey J. Morford 1305 NE 53rd Street Ocala, FL 32670 Dennis M. Flath, Esquire ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of February, 1992. Northeast Florida State Hospital Maccleny, FL 32063
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. - DONE AND ORDERED this 2916 day of in Tallahassee, Leon County, Florida. uqusl '2014, ELIZ , SECRETARY Agency for Health Care Administration Page 1 of3 Filed September 2, 2014 3:39 PM Division of Administrative Hearings ENGAGEMENT NO.: NH05-l 12C A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 David C. Jones Assistant Secretary of B.E.F., Inc., d/b/a Oak Bluffs Health Center 420 Bay Avenue Clearwater, Florida 33756 Email address: djones@tjmproperties.us Debora E. Fridie, Assistant General Counsel Office of the General Counsel, MS #3 Zainab Day, Audit Administrator Bureau of Medicaid Program Analysis, MS #21 Bureau of Finance & Accounting, MS #14 Page 2 of3 ENGAGEMENT NO.: NH05-112C CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by United States Mail, interoffice mail, or email transmission to the above-referenced addressees this 2t:L2y of -2014. RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 Telephone No. (850)-412-3630 Fax No. (850)-921-0158 Page 3 of3 STATE OF FLORIDA
The Issue The issue in this case is whether Respondent committed a discriminatory housing practice against Petitioner.
Findings Of Fact In March 2006, Ms. Burnette moved into Oak Gardens, which is a 55+ mobile home community in Sebring, Florida. Oak Gardens is adjacent to Silver Oaks Mobile Home Park (Silver Oaks), and both mobile home parks have the same management. Ms. Burnette rented a space for her mobile home from Oak Gardens. Her mobile home was infested with mold and lacked central heating and air conditioning. Approximately a month after Ms. Burnette moved into the community, she bought a second mobile home and moved into it. She also kept the second mobile home at Oak Gardens and paid rent to Oak Gardens for the space on which the mobile home was located. In March 2007, Ms. Burnette sustained injuries in an automobile accident. She has difficulty walking and does not see well. The evidence presented at the final hearing does not establish that Ms. Burnette had a handicap. After her accident, Ms. Burnette asked Mr. Charbonneau to be her caregiver. From March until October 2007, Mr. Charbonneau cared for Ms. Burnette, but did not stay overnight with Ms. Burnette. Some time in October 2007, Mr. Charbonneau started staying overnight with Ms. Burnette at Oak Gardens. Oak Gardens requires each of its residents to undergo a background check as part of an application for residency at Oak Gardens. The application is made on a form used by Oak Gardens. The background checks are done by an outside company. When Mr. Charbonneau began staying with Ms. Burnette on a full-time basis, management at Oak Gardens asked that Mr. Charbonneau fill out an application for residency and submit to a background check. Ms. Burnette gave some information to Oak Gardens concerning Mr. Charbonneau, but it was insufficient to comply with the application for residency. Ms. Burnette was advised that Mr. Charbonneau needed to fill out the application for residency that all potential residents completed. Mr. Charbonneau supplied the requested information. Within a month, a background investigation was performed, and Mr. Charbonneau was approved to live in the Oak Gardens community. Ms. Burnette claims that Oak Gardens refused to allow Mr. Charbonneau to live at Oak Gardens. When questioned at the final hearing concerning her claim, Ms. Burnette stated that the only time that Oak Gardens interfered with Mr. Charbonneau’s residency at the mobile home park was when management called the police. Mr. Charbonneau candidly admitted that, at the time the police were called to Oak Gardens, he and Ms. Burnett were arguing in the street. Ms. Burnette entered into an agreement with Oak Gardens to allow Oak Gardens to attempt to sell the mobile home which Ms. Burnette vacated, but still owned. Ms. Burnette does not feel that Oak Gardens made a good faith effort to sell the mobile home, but she did not demonstrate that the failure of Oak Gardens to sell her mobile home was because she had a handicap. She claims that Oak Gardens would not renew its agreement to sell the mobile home; however, at some point, Ms. Burnette wrote to Oak Gardens and advised that she no longer wanted to sell her mobile home and that she needed the unit for extra storage space. Additionally, the letter advised that Mr. Charbonneau was her caregiver. Ms. Burnette complained that she and Mr. Charbonneau were not allowed to attend a Thanksgiving dinner at one of the two clubhouses located at Oak Gardens and Silver Oaks. There were two homeowners’ associations for the communities. One homeowners’ association was sponsoring a private dinner, and one homeowners’ association was sponsoring a dinner at which anyone could participate. The evidence was not clear whether Ms. Burnette was attempting to attend the private dinner or the public dinner. However, the management at Oak Gardens was not involved in the dinners being sponsored by the homeowners’ associations and did not deny Ms. Burnette or Mr. Charbonneau entrance to the dinners. No evidence was presented to establish either Ms. Burnette or Mr. Charbonneau were barred from the Thanksgiving dinner based on a handicap. Both Ms. Burnette and Mr. Charbonneau had use of Oak Gardens’ laundry facilities, pool, and clubhouse. Ms. Burnette stopped paying rent for the lots on which her mobile homes were located. Management for the mobile home park provided notice to Ms. Burnette that she was delinquent in her rent payments. Ms. Burnette did not pay rent after being notified that rents were owed. The owner of the mobile home park, Wayne C. Rickert, filed a Complaint for Eviction of Tenant (Complaint) in the County Court in and for Highlands County, Florida, on June 24, 2008, against Ms. Burnette. The Complaint was assigned Case No. 08-376-CCS. On June 30, 2008, a copy of the Complaint and a Summons on Claim for Possession of Residential Premises and/or Ancillary Relief (Summons) was served on Ms. Burnette by attaching a copy to the premises where she resided. The Summons contained the following: Not counting the first day of service of this summons, YOU HAVE FIVE (5) DAYS IN WHICH TO SERVE WRITTEN DEFENSES, PURSUANT TO CHAPTERS 723 AND 51 OF THE FLORIDA STATUTES, CONCERNING YOUR EVICTION AS TENANT(S) AND TWENTY (20) DAYS IN WHICH TO SERVE WRITTEN DEFENSES CONCERNING CLAIMS FOR MONEYDAMAGES, IF ANY. You must file the original of your written defenses with the Clerk of the Court, either before or immediately after you serve the Plaintiff’(s) attorney. Ms. Burnette claimed that she was never served with a copy of the Complaint. Her testimony is not credible. On July 7, 2008, Ms. Burnette filed, with the Clerk of Highlands County Court, hand-written defenses to the Complaint, citing the case number and the date of service as June 30, 2008, at 6:35 p.m. On August 21, 2008, a Final Judgment was entered against Ms. Burnette in Case No. 08-376-CCS, requiring Ms. Burnette to relinquish possession of the lots to the Plaintiff. The Final Judgment further provided that, if Ms. Burnette failed to vacate within ten days of the date of the Final Judgment, a writ of possession would be issued to the sheriff, commanding the sheriff to put the Plaintiff in possession of the lots. A Writ of Possession was issued on September 15, 2008. On September 16, 2008, the Highlands County Sheriff’s Office served the Writ of Possession at the mobile home which Ms. Burnette had been occupying. The furnishings were removed from the mobile home, and possession of the mobile home was delivered to William Moore, the manager for the mobile home park. Oak Gardens gained title to the mobile home and sold it to a third party. No evidence was presented to establish that the eviction was based on discrimination. The eviction was for non- payment of rent. Oak Gardens has evicted other tenants for non- payment of rent. In August 2008, Mr. Charbonneau had a heart attack. The evidence presented did not establish that he was handicapped. Oak Gardens did not present evidence to establish that Ms. Burnette filed the Petition for Relief for a frivolous purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition for Relief and denying Respondent’s Petition for Attorney’s Fees and Costs. DONE AND ENTERED this 12th day of June, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 12th day of June, 2009.
The Issue Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford Development Group filed application number 4-117-0464AC-ERP with the St. Johns River Water Management District (SJRWMD) in April 1997, seeking a conceptual approval environmental resource permit. After SJRWMD issued its notice of intent to grant the permit, the Petitioners filed their petitions challenging the intended agency action. The central issue in this proceeding is whether the permit should be issued pursuant to Chapter 373, Florida Statutes, and Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code, including specific provisions of the Applicant's Handbook adopted by rule and identified in the parties' prehearing stipulation filed July 8, 1998.
Findings Of Fact The Parties Michael D. Rich is a former resident of Seminole County who lived on the property contiguous to the Live Oak site. He is the legal representative of his mother who still resides on the property and he is president of C-RED. C-RED is a Florida non-for-profit corporation with members from the City of Oviedo and unincorporated areas of Seminole County who are interested in assuring that development is done without improper impact on the taxpayers and the rural character of the area. Mr. Griffin is a resident of Seminole County living on Horseshoe Lake, which adjoins the Live Oak site. Live Oak is a Florida Limited Partnership which intends to develop the project that is the subject of this proceeding. SJRWMD is a special taxing district created by Chapter 373, Florida Statutes, and charged with responsibility for various permitting programs, including the one at issue here. The Project Live Oak proposes to develop a large multi-phased single family project with two small commercial sites. The project, to be known as "Live Oak Reserve," will be on approximately 1,041 acres on the south side of county road 419 in southeastern Seminole County in the City of Oviedo. The project site is located near the confluence of the Econlockhatchee River (Econ River) and Little Econlockhatchee River. The Live Oak Reserve property includes approximately half of Horseshoe Lake, as well as a small creek, Brister Creek, which flows from Horseshoe Lake across the property to the Econ River. The Econ River, a class III water and designated an Outstanding Florida Water (OFW), crosses the southwestern corner of the Live Oak Reserve property. The Econ River is the receiving water body of Live Oak Reserve. The Live Oak Reserve property is located within the Econlockhatchee River Hydrologic Basin. A portion of the Live Oak Reserve property lies within the Econlockhatchee River Riparian Habitat Protection Zone (RHPZ). The Live Oak property lies within a 1,500 acre drainage basin; approximately 450 acres off-site drain through Live Oak Reserve. Horseshoe Lake has approximately 500 acres that drain through it, then through the wetlands and into the Econ River. Historically, the Live Oak Reserve property has been used for agricultural practices, including siliviculture and cattle production. Some areas of the property have been logged and some areas have been converted to pasture. Cattle have grazed in wetlands, thereby decreasing the amount and diversity of groundcover vegetation on portions of the property. Additionally, on-site drainage ditches have had a major impact on the hydrological characteristics of the wetlands on the property, including the reduction of surface water elevations. The Live Oak Reserve property is currently vacant and undeveloped. The Application Process In April 1997, Live Oak submitted to the SJRWMD an Environmental Resource Permit Application, N4-117-0464AC-ERP, for conceptual approval of a master stormwater and floodplain management system for the development of Live Oak Reserve. A conceptual permit is utilized in complex multi-phased projects which are expected to have a longer build-out period than a single phase project. A conceptual permit does not allow any construction activity, but provides the outline for final engineering calculations and construction drawings. Further permits are required before any sitework or construction is undertaken. In conjunction with its permit application Live Oak submitted detailed technical information, including but not limited to charts, maps, calculations, studies, analyses and reports necessary to show that the conceptual development plan was consistent with the permitting criteria of the SJRWMD found in Chapter 40C-4, Florida Administrative Code, and the Applicant's Handbook. The master plan for the Live Oak project was designed by Donald W. McIntosh Associates, Inc.(McIntosh) using input from: (a) land planners who were required to consider issues related to the comprehensive plans, open space requirements and related issues; (b) landscape architects who were responsible for the proposed park systems and landscape treatments throughout the project; (c) geotechnical engineers responsible for evaluating the soil and groundwater conditions; and (d) environmental consultants, Modica and Associates, who were responsible for wetland delineation and flagging and wildlife surveys. The first version of the Live Oak Reserve site plan prepared for the project by McIntosh included development of all upland areas and filling several portions of the mixed forested wetlands to maximize lot yield. This included development of the upland adjacent to the Econ River and development of an upland parcel on the west side of the river. After much consideration and revision by the developer and its consultants, a site plan was developed which minimizes impacts to wetlands and other surface water functions, particularly as it relates to the Econ river, and maximizes the benefits to wildlife by establishing a series of wildfire corridors across the site. The final plan submitted to the SJRWMD at the time of the application includes the preservation of the entire Econ River floodplain and two adjacent developable upland areas, a large mixed hardwood forested wetland which traverses the site from the northeast to the southwest, and upland and wetland areas in the southern portion of the site that provide a corridor between a large undeveloped parcel to the east and the Econ River to the west. After submission of its application, Live Oak participated in a review process with SJRWMD staff to further eliminate and reduce wetland impacts. Specifically, SJRWMD requested changes to the site plan which included reductions in impacts to various wetlands and additional buffers to other wetlands. Several changes to the site plan were made to accommodate the SJRWMD's concerns relating to reducing impacts to wildlife, particularly the Florida sandhill crane. The reductions in wetland impacts and other design changes resulted in a revised site plan which the SJRWMD staff recommended to the district's governing board for approval. The staff recommendation of approval, with associated conditions, is set forth in Technical Staff Report dated February 10, 1998. On July 14 and 16, 1998, the SJRWMD revised the technical staff report to reflect changes to the project design and mitigation plan, as well as to add conditions inadvertently omitted from the earlier technical staff report. Condition no. 8 was mistakenly added to the July 16 technical staff report and by stipulation of all the parties, this condition was removed from the technical staff report. (See transcript, page 521) Stormwater Analysis McIntosh utilized information from different sources in preparing the stormwater calculations submitted to the SJRWMD. The developer provided information regarding proposed lot sizes and types so as to determine the impervious surface area for developable lots. The geotechnical consultants, Universal Engineering Sciences, (Universal) provided McIntosh with preliminary, interim, and final geotechnical reports, soil boring logs, and groundwater table estimates. The input from Universal primarily involved the establishment of seasonal high and seasonal low groundwater elevations for the pre-development and post-development conditions on the site. The estimated seasonal high and seasonal low groundwater levels refer to the range of levels the groundwater is expected to attain on the site during the wetter (high) and dryer (low) periods of a normal year. These elevations were then utilized in the stormwater calculations prepared by McIntosh. Topography on Live Oak Reserve consists of elevations ranging from 48 feet to 25 feet NGVD. In its pre-development condition, Live Oak Reserve has 6 distinct drainage patterns. Off-site drainage basins also contribute runoff to the property. The conceptual post-development design will modify the project's on-site drainage patterns into 28 drainage basins. At the request of the SJRWMD, Live Oak prepared seasonal high and seasonal low groundwater elevation contour maps. Live Oak performed approximately 200 borings on the Live Oak Reserve property. From the borings, Live Oak determined the soil types present and the existing groundwater elevations. Live Oak also used the borings to assist in establishing the estimated seasonal groundwater elevations. With the exception of several shallow borings in wetland areas, all borings were taken by split spoon sampling. Seventy-nine piezometers were installed next to bore holes to measure groundwater levels. In establishing the seasonal high groundwater levels, Live Oak evaluated the groundwater level at the time of boring; the time of year the groundwater level was measured; the time span of the investigation and its relationship to normal rainfall patterns; soil indicators such as coloration, mottling, and particle size; site specific topography; USGS quadrangle maps depicting site topography; Soil Conservation Service (NSCS) estimates of the expected seasonal high groundwater levels; and vegetative indicators. It is not essential to evaluate rainfall data when determining the seasonal water levels because the historical seasonal water levels are recorded in the soils. The estimated seasonal high groundwater level can be determined during the dry season. The range of the estimated seasonal high groundwater level on the Live Oak Reserve property is from standing water on the ground to five feet below the existing grade. In evaluating Live Oaks estimated seasonal groundwater levels, the District reviewed Live Oak's submittals, and also reviewed the NSCS soil survey to confirm that the estimated seasonal groundwater levels were reasonable. Wetland seasonal surface water levels were estimated using biological indicators such as lichen lines, buttressing, water lines, and sand lines. Lichen lines were apparent on the Live Oak Reserve properly and reflective of normal rainfall conditions. Seasonal high water levels are expected at the end of September. Seasonal low water levels are expected in May. The wetland surface water levels encountered in January 1997, when the seasonal levels were estimated, were neither exceptionally low nor exceptionally high. The water levels were representative of a period of normal rainfall. Water quantity attenuation and stormwater treatment will be accomplished through wet detention ponds and vegetative natural buffers. Due to the location of Live Oak Reserve in the Econlockhatchee River Hydrologic Basin, special basin criteria apply this project. The special basin criteria, also known as the "Econ Rule," is more stringent than the stormwater management criteria set forth in Applicant's Handbook sections 9 and 10. The special basin criteria, as it relates to the surface water management systems, requires Live Oak to control its discharge from two design storms: the mean-annual design storm, and the 25-year, 24-hour design storm. A design storm is a hypothetical storm with a predetermined rainfall amount, a predetermined intensity and 24 hour-duration. Designing the system to control the peak discharge during the mean-annual storm will prevent erosive velocities that would be harmful to Brister Creek and the Econ River. The conceptually proposed system is designed to limit peak rates of discharge to those of pre-development for the mean-annual and the 25-year, 24-hour design storm events. The system, as conceptually proposed, will limit post-development discharge rates to the same as or lower than the pre-development discharge rates. Each stormwater management area will pre-treat its respective post-development basin's pollution volume prior to discharge downstream. Live Oak proposes to use vegetative natural buffers for a portion of the rear lots within the post- development condition to fulfill treatment requirements. Live Oak Reserve is designed for the retention of the first inch of runoff from the total area of the post-development basins or the total runoff from 2.5 inches times the post- development basin's impervious area, whichever is greater. Furthermore, because Live Oak Reserve conceptually discharges to the Econ River, an OFW, the system is designed to provide an additional 50 percent of treatment. For discharges to an OFW the system must treat to a 95 percent removal standard. The outfall structures within each wet detention system are designed to draw down one-half the required treatment volume between 60 to 72 hours following storm event, but no more than one-half of this volume will be discharged within the first 60 hours. Each wet detention pond is designed with a permanent pool with a 31.5-day residence time during the wet season. Residence time is the time that the water within a pond will stay in the pond prior to discharge. The residence time includes the 14-day residence time required of all wet detention systems, an additional 50 percent residence time (7 days) for discharging into an OFW, for a total of 21 days. In addition, each system has been designed to provide an additional 50 percent residence time (10.5 days) because Live Oak has elected not to plant littoral shelves within each pond. As conceptually designed, Live Oak reserve's post- development drainage pattern will have no effect on the drainage patterns of Lake Eva or Horseshoe Lake. As conceptually designed, Live Oak Reserve's post-development drainage pattern will reduce the rate of flow during the storm events, which is a positive effect on the drainage pattern of Brister Creek. The reduction in flow velocity reduces the erosiveness of the storm. Live Oak has demonstrated that the 25-year and 100- year, 24-hour storm events' post-development peak stages for Lake Eva and Horseshoe Lake are not changed as a result of this conceptual project. Based upon Live Oak's calculations, the Live Oak Reserve project will not cause any restriction to the flow of water as it outfalls from Horseshoe Lake to Brister Creek. The conceptual wet detention systems within Live Oak Reserve are proposed to have a maximum depth of 12 feet. However, Live Oak requested consideration at the time of final engineering for each phase of development to maximize selected stormwater management areas for maximum depths of up to 25 feet. That consideration will be made in subsequent application review and is also subject to the City of Oviedo's approval. The conceptual wet detention ponds are designed with an average length to width ratio of two to one, and are configured to minimize the occurrence of short circuiting. As such, they will meet the criteria of the applicable rules. Tailwater conditions for the project were based on published flood elevations. Live Oak analyzed the tailwater condition for the mean-annual, 25-year 24-hour, and the 100-year 24-hour design storms. Live Oak completed a 100-year flow analysis for Live Oak reserve. Pre-development floodplain elevations for Lake Eva, Horseshoe Lake, and the Econ River were referenced from previous studies (Seminole County) and the Federal Emergency Management Agency. Live Oak determined that the 100-year floodplain elevations effecting Live Oak Reserve to be 40.2 feet NGVD from Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD for the Econlockhatchee. The U.S. Geological Survey (USGS) has produced a map of flood prone areas which indicates that the elevation delineating the flood prone area for Horseshoe Lake is 40.14, not 40.2, and for Lake Eva is 43.38, not 45.0. Therefore, the area indicated by USGS as the flood prone area is included in the 100-year floodplain analysis of Live Oak. Live Oak, in its conceptual design, has demonstrated that it will provide compensating storage for any encroachments into the 100-year floodplain. Live Oak has conceptually proposed to fill approximately 18.69 acre- feet within the 100-year floodplain. Live Oak will compensate the filling of the floodplain by providing a cut with the 100-year floodplain of approximately 27.09 acre-feet. By meeting the criteria in the "Econ Rule" the project conceptually meets all other relevant standards for stormwater management as the basin rule is more stringent. Live Oak has provided reasonable assurance that the development will not affect surrounding property or raise stagewater elevations of any surrounding property; the development will not displace the 100- year flood plain area; and the development will not restrict or impede the natural flow from Horseshoe Lake. Wetland and Wildlife Impacts Approximately 430 acres of wetlands cover the project site. Two general types of wetlands on found on the Live Oak reserve property: herbaceous wetlands and forested wetlands. Twenty-three herbaceous wetlands are classified as freshwater marshes. These wetlands range in size from 0.2 acre to over 8 acres. Wetlands 10 and 16, the largest on the property, are mixed hardwood forested wetlands. Approximately 525 acres of the Live Oak Reserve property are located within the RHPZ. Of this area, approximately 410.5 acres are wetlands, and the remainder are uplands that are predominantly pine flatwoods and xeric scrub. A few of the wetlands on site are considered RHPZ wetlands, not "isolated," solely because they are connected to floodplain wetlands by ditches. These wetlands and 50 feet of the uplands surrounding them are considered part of the RHPZ. The wetlands within the RHPZ are intact with little disturbance, especially in the Econ River corridor that is a part of wetland 16. Wetland 10 has been logged and the species composition in that wetland has changed. Wetlands 12 and 14 have ditch connections to the Econ River, but these ditch connections do not appear to have adversely impacted the wetlands hydrologically. Wetlands 2,3, and 8 have ditch connections to the Econ River. These wetlands have been adversely affected (drained) by the ditching. The RHPZ uplands are in good condition and provide very valuable habitat, except for 12 acres that are adjacent to upland cut drainage ditches. These 12 acres have no habitat value. The portion of the Live Oak Reserve property within the RHPZ provides good habitat important to fish and wildlife, and is part of the Econ River floodplain. The upland areas outside the RHPZ on the Live Oak Reserve property primarily consist of pine flatwoods and pasture. The pine flatwoods have been logged and are overgrown. The pasture appears to have been cleared many years ago and planted with bahia grass. Twenty-two isolated wetlands, which total approximately 17.9 acres, are located on the Live Oak reserve property. The isolated wetlands are intact and in good condition, except for temporary impacts due to cattle grazing and logging. The isolated wetlands provide habitat for wading birds, frogs, toads, and other wildlife. Ephemeral wetlands are wetlands that are seasonally inundated, but not necessarily inundated every year. Ephemeral wetlands provide important functions to wildlife, including gopher frogs and other amphibians for breeding, wading birds and sandhill cranes for foraging, and invertebrates. Ephemeral wetlands or "seasonal" wetlands occur on the Live Oak Reserve property. Although Live Oak did not separately address any of the wetlands as ephemeral, the value and functions of ephemeral wetlands were assessed by SJRWMD staff-person, David Eunice. While several small ephemeral wetlands are being impacted by the proposed development, several others are being preserved. Live Oak conducted wildlife surveys of the Live Oak Reserve property in accordance with the Florida Game and Fresh Water Fish Commission's approved Wildlife Methodology Guidelines. Based on the surveys, Live Oak determined that three listed species occurred on-site: the Florida sandhill crane, the gopher tortoise, and the Sherman's fox squirrel. The Florida sandhill crane is a threatened species. Live Oak found no evidence that the property hosts Florida panthers. Although the wildlife surveys did not identify gopher frogs, a species of special concern, the SJRWMD recognized the potential for the gopher frog to use the wetlands, including the ephemeral or seasonal wetlands, on the Live Oak Reserve property. Florida sandhill cranes have been observed foraging in a few areas on the Live Oak reserve property. In the spring of 1997, Live Oak identified two active nests in freshwater marshes (wetlands 21 and 29). There is no evidence that the sandhill cranes are currently nesting in wetland 29; however, Florida sandhill crane nests have been located in wetlands 14 and 21 this year. The typical critical nesting habitat for Florida sandhill cranes is a large, isolated marsh, generally either dominated by maidencane or pickerel weed. The marsh must maintain a surface water level between 12 and 24 inches so that the birds can construct a suitable nesting platform in the marsh. Nesting success, in part, depends upon wetland type used and water depths. The Florida sandhill crane also requires a certain amount of pasture-like upland habitat in which to forage. However, the crane forages in both uplands and wetland. Upland pasture is the sandhill crane's preferred foraging habitat. The sandhill crane's second most preferred foraging habitat is freshwater marsh. When the sandhill cranes have chicks and fledglings, the birds forage in the wetlands. After a period of three to four months, the juvenile and adult sandhill cranes will move to open pasture to forage. The Econ River floodplain wetlands and their associated upland habitats on the Live Oak reserve property are regionally ecologically significant. Overall, the Live Oak Reserve property provides good ecological value. It is part of the river corridor, has a tributary that runs through it and has uplands that have had little disturbance. Live Oak has eliminated certain wetland impacts and reduced others during the design of the Live Oak Reserve project. Live Oak eliminated some road crossings, and redesigned the pond configuration to eliminate or reduce encroachments into wetlands. Live Oak's site plan that was submitted as part of the initial April 14, 1997, application reflects Live Oak's initial attempts to eliminate or reduce impacts. Live Oak, in its application, proposed a project design with 46 acres of wetland impacts. The site plan has changed since Live Oak made the initial application to the SJRWMD. The initial project design called for the removal of the southern one-half of wetland 29 for the construction of a stormwater pond. Live Oak redesigned the project to preserve wetland 29 with a 50-foot upland buffer around it to eliminate direct impacts to the sandhill cranes nesting there. Live Oak further reduced impacts by preserving wetlands 14 and 15, and by placing upland buffers around them to protect sandhill crane habitat. The revised design of the surface water management system reduced wetland impacts by approximately 7 acres. The SJRWMD February 10, 1998, technical staff report includes the design plans reducing impacts by 7 acres. After the SJRWMD issued its February 10, 1998, technical staff report, Live Oak once again redesigned the project to preserve wetland 12. This redesign reduced wetland impacts by an additional 3 acres. In this case, SJRWMD staff worked with Live Oak to reduce or eliminate its impacts. Nonetheless, staff believed Live Oak's proposed mitigation qualified for the exception under Section 12.2.1.2b, that is, the on-site preservation of the Econ River floodplain and associated uplands, in concert with Live Oak's contribution to acquiring a conservation easement over the Yarborough parcel, discussed below, provides regional ecological value and provides greater long term ecological value then the areas impacted. Live Oak proposes practicable design alternatives, but it is not required to reduce or eliminate all impacts. Some design alternatives, such as whether to use a bridge or culverts for the Brister Creek crossing, must be addressed and considered at a later permit application stage and not at this conceptual permit stage. The proposed design includes dredging or filling of approximately 35.9 acres of wetlands and construction in approximately 38 acres of RHPZ uplands. Of these 35 wetlands on the Live Oak Reserve property, Live Oak will completely impact 23 of the wetlands (17.64 acres of wetland impact); partially impact 5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of wetlands); and will avoid impacts to 7 wetlands (40.63 acres). The impacts are mostly limited to the small isolated wetlands, the upland/wetland transitional edges of the floodplain wetlands, and portions of RHPZ already degraded by a ranch roadway and ditch placement. Live Oak focused its impacts on areas, including wetlands, that were historically disturbed. SJRWMD staff considered that the isolated wetlands less than 0.5 acre were used by sandhill cranes and other threatened or endangered species. Therefore, staff required Live Oak to offset impacts to the small isolated wetlands. In addition to physical impacts to wetlands and RHPZ, the habitation of the proposed subdivision, which will result in noise and intrusion into wildlife habitat by humans and their pets, will cause secondary impacts. Those secondary impacts are offset in part by the upland buffers proposed by the applicant (a total of 10 acres of 25 foot buffers and 47.86 acres of 50- foot buffers.) After considering the type of impact proposed; past, present and future activities that may occur in the Econ River Hydrologic Basin; and that Live Oak off-site mitigation of adverse impacts is located within the same hydrologic basin; SJRWMD staff appropriately determined that Live Oak Reserve would not have an adverse cumulative impact. Mitigation Live Oak's mitigation plan consists of both on-site and off-site preservation. The proposed on-site component of the mitigation plan entails the preservation of 19.3 acres of herbaceous marsh, 373.2 acres of forested wetlands, and 124.9 acres of uplands. The mitigation plan preserves approximately 5.65 acres of isolated wetlands on-site, and approximately 386.86 acres of RHPZ wetlands on-site. The cornerstone of Live Oak's on-site mitigation is the preservation of the Econ River forested floodplain swamp, as well as two upland areas, in the southwestern corner of the property. One of the upland areas is a 15-acre upland scrub island on the east side of the river that is surrounded by forested wetlands. The other upland area is 24 acres of uplands located near the Econ River on its west side. Portions of both uplands are within the RHPZ. Both the forested floodplain and the associated upland areas provide habitat of regional ecological significance. The forested floodplain wetlands and the uplands that are part of the RHPZ are protected to a large degree by SJRWMD regulations. These regionally significant wildlife communities, however, can be temporarily, but chronically, impacted, if not permanently degraded, by timbering and other activities that are relatively unregulated. Live Oak proposes to protect and preserve these areas by placing them in a conservation easement. Placing Econ River forested floodplain wetlands and the upland RHPZ areas in a conservation easement will provide a greater level of protection and assurance that they will mature to an "old growth" condition, which will benefit many wildlife species. The Econ River floodplain wetlands, the upland scrub island and the small isolated wetland in the scrub island will accommodate the smaller wildlife species that currently use the Live Oak Reserve property. Live Oak has preserved most of the larger isolated wetlands with high ecological value. The large isolated wetlands preserved on-site will continue to maintain a high level of ecological function even with the surrounding development. Wildlife, such as frogs, toads, snakes, and wading birds will continue to use those wetlands. The on-site portion of the mitigation plan preserves approximately 71.87 acres of upland buffers, of which 2.04 acres are located in 25-foot buffers and 69.83 acres are located in 50- foot RHPZ buffers. The buffer areas will be placed in a conservation easement. The wildlife values of the uplands on this property that are not within the RHPZ are protected to some degree by local government regulations; they are, however, largely unprotected by the existing regulations of SJRWMD. Without the proposed conservation easements, this habitat may be developed or significantly degraded by other activities. As a component of its on-site sandhill crane nesting site management plan, Live Oak preserves a 6.83-acre upland buffer next to wetland 21, which hosts a sandhill crane nest. Additionally, Live Oak provides enhancement of 3.88 acres on the southside of wetland 21 within the 6.83-acre buffer area by converting this area to improved pasture for sandhill crane foraging habitat. The mitigation plan sufficiently offsets the impacts to the smaller isolated wetlands, even if these wetlands have more than a typical resource value. When evaluating impacts and mitigation, Applicant's Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the predicted ability of the wetland or other surface water to maintain their current functions as part of the proposed system once the project is developed. Many of the smaller isolated wetlands, when located in a natural setting such as a pine flatwood, are very critical and provide very high ecological value. However, once a project is developed and the small isolated wetland is surrounded by homes, the resource value of the small isolated wetland is diminished. Many of the smaller wildlife species, such as frogs and snakes, will be extirpated from the developed area of property, whether or not the smaller isolated wetlands remain. SJRWMD considered the value of the off-site mitigation to offset the adverse impacts to the smaller isolated wetlands. In determining the adequacy of the preservation component of the mitigation plan, SJRWMD staff did not rely upon any specific rule, regulation, or comprehensive plan of the City of Oviedo. However, the staff did consider the overall protections afforded by the regulatory and comprehensive plan requirements of the city and determined that preservation of the mitigation areas by conservation easement provided greater assurance that these areas will be protected than the local government rules, regulations, and comprehensive plan. The off-site component of the mitigation plan is the contribution of $160,525 towards participation in the SJRWMD acquisition of a conservation easement over the 3,456 acre Yarborough parcel. The Yarborough parcel is located in the northeastern corner of the Econ River Hydrologic Basin. The Yarborough parcel encompasses property north and south of the Econ River. A portion, mostly sovereign lands, lies within the Puzzle Lake/Upper St. Johns River Hydrologic Basin. The Yarborough parcel is part of a large working ranch. The parcel contains improved and unimproved pasture, significant cabbage palm hammocks, pine flatwood communities, and freshwater marsh. Live Oak's participation equates to the acquisition of a conservation easement over 200 acres of the Yarborough parcel. However, Live Oak is not purchasing any particular 200 acres with the Yarborough parcel. Live Oak's contribution is applied to 200 acres of the Yarborough parcel within the Econ River Hydrologic Basin. SJRWMD estimates that of the 200 acres, 165 acres are wetlands and 35 acres are uplands. This assessment is based on the composition of wetlands and uplands on the Yarborough property within the Econlockhatchee River Hydrologic Basin. SJRWMD has purchased development rights over the Yarborough parcel. Yarborough is authorized to continue its cattle operation on the Yarborough parcel for 20 years in accordance with the conditions of the conservation easement. However, Yarborough is not permitted to increase the amount of improved pasture or further develop the parcel. On the contrary, the conservation easement requires Yarborough to decrease the number of cattle on the parcel over the next 20 years. Purchase of the conservation easement over the working ranch has positive environmental benefits. The conservation easement will protect the wildlife species that use the ranch. This environmental benefit can be used to offset adverse impacts on the Live Oak Reserve property. To participate in this type of mitigation, the acquisition must be imminent so that the SJRWMD is reasonably assured that the purchase will go forward. Participation is precluded for a parcel after its acquisition is concluded. Live Oak's mitigation plan, with its on-site and off- site components, offsets Live Oak Reserves adverse impacts. SJRWMD calculates the mitigation ratio and compares it to the guidelines in the Applicant's Handbook to determine if mitigation is adequate. SJRWMD however, is not required to adhere to any set ratio. The upland preservation ratio (area preserved to area impacted), excluding the 12 acres of uplands along the upland cut ditches and the Yarborough parcel uplands, is 6 to one. The rule guidelines for upland preservation is from 3 to one to 20 to one. The wetland preservation ratio is 15.5 to one. The rule guidelines for wetland preservation is from 10 to one to 60 to one. Public Interest Criteria Live Oak Reserve will not have any effect on the public health, safety or welfare or property of others. Because the mitigation plan adequately offsets all adverse impacts, Live Oak reserve will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Because of the benefits of lowering the discharge rates in the post-development condition and reducing the velocity of stormwater in Brister Creek, Live Oak Reserve will reduce the potential for erosion. Live Oak Reserve will not have any affect on the fishing or recreational values or marine productivity in the vicinity of the site. Live Oak Reserve will be of permanent nature. However, its adverse impacts have been offset by mitigation. The permanence of the project is beneficial in that it provides treatment of untreated off-site runoff from county road 419 by the Live Oak surface water management system and it reduces the discharge rate of stormwater down Brister Creek. Therefore, the permanence of the project is not contrary to the public interest. In accordance with Section 373.414, Florida Statutes, the Florida Department of State Division of Historical Resources determined that the Live Oak Reserve project will have no possible impact to historic properties listed, or eligible for listing, in the National Register of Historical Places, or otherwise of historical or architectural value. Furthermore, the Division of Historical Resources determined that the project is consistent with Florida's Coastal Management Program and its historic preservation laws and concerns. The current condition and relative value of functions being performed by the various vegetative communities on the Live Oak Reserve property is good. However, there is no guarantee that the value and functions would remain good if the property is not managed for species like the sandhill crane or if agricultural and silvicultural practices continue to occur on the property. The mitigation plan, preserving regionally ecologically significant wetland and upland communities on both the Live Oak Reserve and Yarborough parcel by conservation easement, should provide a greater protection of those communities than what currently exists.
Recommendation Based on the forgoing, it is RECOMMENDED That a final order be entered granting Live Oak's application for a conceptual approval environmental resource permit with the conditions set forth in the SJRWMD technical staff report dated July 16, 1998, with the exception of condition 8, deleted by stipulation. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998 COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road Longwood, Florida 32779 Charles H. Griffin, pro se 250 West 7th Street Chuluota, Florida 32766 Michael L. Gore, Esquire Meredith A. Harper, Esquire Ken W. Wright, Esquire Shutts and Bowen, LLP 20 North Orange Avenue Suite 1000 Orlando, Florida 32801 Anthony J. Cotter, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue Whether Respondent violated Subsection 464.018(1)(h), Florida Statutes (2003),1 and Florida Administrative Code Rule 64B9-8.005(1)(c), and, if so, what discipline should be imposed.
Findings Of Fact On March 14, 2004, Ms. Harris was employed at Melbourne Terrace Residential Care Center (Melbourne Terrace) as a certified nursing assistant (C.N.A.). Melbourne Terrace is a long-term care facility for geriatric residents. On January 26, 2004, Ms. Harris was permanently assigned to the 11:00 p.m.-to-7 a.m. shift on the west wing of the facility. On March 5, 2004, Ms. Harris tendered her resignation effective March 24, 2004. On March 14, 2004, Ms. Harris clocked-in at around 10:45 p.m. Ms. Linda Lovewell, a supervising licensed practical nurse (L.P.N.), had been advised that the east wing was short a C.N.A. on that date. She reassigned Ms. Harris to the east wing for the 11:00-to-7:00 shift. Two L.P.N.s, Patty Avila and Olga Vickerie, were working as supervisors on the east wing that evening. When Ms. Harris got to the east wing, she was advised by Ms. Avila that she could not work on the east wing because Ms. Harris' sister also worked the same shift on the east wing. Apparently, Melbourne Terrace had adopted a policy that relatives could not work on the same wing during the same shift. Ms. Avila told Ms. Harris to wait until she could call a supervisor to straighten out the reassignment. Ms. Harris was not given specific permission to go home. Ms. Harris did not wait, but clocked-out at 11:09 p.m. She did not advise either Ms. Avila, Ms. Lovewell, or Ms. Vickerie that she was clocking- out. At the final hearing, Ms. Harris explained that she left because she had ridden to work with her sister and needed to catch a ride home with her cousin if she was not going to be able to work that evening. Although, there may have been a policy that would have prevented Ms. Harris from working on the east wing that evening, there was no evidence presented that Ms. Harris would have been prohibited from working on the west wing, which was her regular assignment. Ms. Avila did not realize that Ms. Harris had left the facility until about an hour into the shift. She assumed that Ms. Harris was not on the east wing because she was cooling off because she was angry. Melbourne Terrace's employee handbook provides that "[e]mployees may not leave assigned work area without the approval of the supervisor." Ms. Harris had received and read the handbook and was aware that she had to notify her supervisor before leaving. Melbourne Terrace was short one C.N.A. on March 14, 2004. Because of Ms. Harris' abrupt departure, the facility was unable to secure a substitute C.N.A., leaving Melbourne Terrace in possible violation of staffing requirements and creating difficulties for lack of time to find a substitute C.N.A.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Bertha Harris guilty of violating Subsection 464.018(1)(h), Florida Statutes; imposing an administrative fine of $250; and placing her on probation for one year with terms to be set by the Board of Nursing. DONE AND ENTERED this 18th day of August, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 18th day of August, 2005.
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of a violation known as a "Class II violation" or "deficiency" and, if so, whether a $2,500.00 fine and conditional licensure status should be imposed upon the Respondent facility.
Findings Of Fact The Agency for Health Care Administration (AHCA or Agency) is the regulatory agency charged with licensure and enforcement of all applicable statutes and rules governing skilled nursing facilities and the appropriate provision of nursing and other elements of care in such facilities in Florida. The Respondent Haven of Our Lady of Peace, Inc., (Haven) owns and operates a skilled nursing facility, which is a 120 bed facility located in Pensacola, Florida. On July 20, 2004, a survey was conducted by AHCA of the Haven facility. One Agency representative was on the premises on July 20, 2004, to investigate a complaint received by the Agency. When the survey was made the facility was operating under a standard license (Number SNF11970951) issued by the Agency, with an effective date of July 1, 2004 through June 30, 2005. Haven was cited for a Class II deficiency and issued Notice of a Conditional License and a $2,500.00 fine as a result of the survey. It chose to contest this initial Agency action by availing itself of the right to a formal proceeding pursuant to Section 120.57(1), Florida Statutes. The basis of the charged Class II deficiency was an incident involving Resident 3, in which she fell from a seated position in a wheelchair, injuring her head. At the time of the incident an order had been written by the treating physician assigned to Resident 3, which read as follows: D/C lap buddy. D/C lateral supports. Velcro torso support while in w/c [wheelchair]. Release Q2 for toileting, exercise, repositioning. As a result of the survey, the Agency provided Haven with a "Statement of Deficiencies" stating upon what basis the purported Class II deficiency was believed to exist. Resident 3 experienced a fall when she turned over her wheelchair in July 2003 by leaning to far to the right. Haven, in response to this experience, tried several approaches to help Resident 3 when she was in the wheelchair. Lateral supports and "lap buddy" were the first two interventions. The lap buddy caused the resident aggravation and therefore was discontinued and the torso support device was implemented. The torso support was not a restraint, but rather was applied to assist Resident 3 in maintaining good position while in her wheelchair. While Resident 3 had fallen on several occasions, she had never fallen or leaned forward prior to the subject falling incident. If Resident 3 had previously leaned forward, then other devices, such as wedge cushions, would have been used rather than the torso support. The torso support is not a good device to use if a resident falls forward. The torso support was not intended to directly prevent falls. On July 17, 2004, Kathy Anderson, a Certified Nursing Assistant (CNA), was preparing Resident 3 for bed. Ms. Anderson took Resident 3 from the living room, at which Resident 3 had a torso support on, in her wheelchair to the bathroom in Resident 3's room. The torso support was taken off so that the resident could use the bathroom. Ms. Anderson, as she had done on many occasions while caring for Resident 3, then placed her in a good position in the wheelchair, without applying the torso support and pushed her several feet into the bedroom and placed the wheelchair perpendicular to her bed, with the wall at the right side of the wheelchair (to prevent the feared fall to the right based upon a past tendency of the resident to lean to the right). Ms. Anderson had leaned Resident 3 back in the wheelchair prior to moving her from the bathroom. During the many times Ms. Anderson had cared for Resident 3 she had never leaned forward in her wheelchair. Ms. Anderson determined, while in the bathroom, that the resident's diaper was wet and a dry diaper was needed. The diapers were located in a closet just outside the bathroom. Ms. Anderson, standing at the back of the wheelchair, when it was positioned as described above in the resident's room, was able to reach into the closet and obtain a diaper without losing sight of the resident. It was not necessary for Ms. Anderson to walk to the closet, as the distance was close enough for her to reach the diaper without other movement. As she had done in the past, Ms. Anderson had instructed the resident that she was getting a diaper. The resident was still sitting in the wheelchair when Ms. Anderson had the diaper in hand. The resident then suddenly leaned forward and fell from the wheelchair and struck her head on the bottom of the bed. Ms. Anderson tried to catch the resident when she saw her falling, but was unsuccessful. Ms. Anderson then called a nurse, Joyce Parks, and Resident 3 was placed in her bed. Dr. Holmes' order (and his testimony) provided that the supports should be released at least every two hours. The torso support is not worn when the resident is in bed. The torso support must be removed to change the resident's clothes. There was no reason for the torso support to be re- applied after the resident used the bathroom. Ms. Anderson provided appropriate supervision of Resident 3 and her actions did not violate Dr. Holmes's order. The fall that occurred on July 17, 2004, was unforeseeable as the resident had never leaned forward before, but had always leaned to the right after she had been sitting for a long time and grew tired. Further, the resident had been placed in the bed after using the bathroom by Ms. Anderson using the same procedure during the two months that Ms. Anderson had cared for the resident. Resident 3 was in the nursing home for about two years. Dr. Holmes advocated that the residents be restrained as little as possible. According to Dr. Holmes, Resident 3 was a "delightful lady" and the applying of a restraint would have negatively impacted her quality of life. The relevant regulation applicable to nursing facilities requires that anything that restricts a resident be classified as a restraint; therefore, Haven was required to list the torso support as a restraint. In actuality, the torso support was not and did not function as a restraint. A torso support is applied to position the resident more straight and in a better position in a wheelchair. A torso support allows a resident to sit more straight for a longer period of time, to be more comfortable and thereby enjoy a better quality of life. It was reasonable for Ms. Anderson to be standing behind the wheelchair when she wheeled Resident 3 out of the bathroom and into the bedroom. The resident's ability to reach her highest practicable mental, physical and psycho-social well- being was not compromised by the Haven staff in this instance. Resident 3 received adequate supervision and assistance devices on July 17, 2004, when this incident occurred.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Agency for Health Care Administration, dismissing the Amended Administrative Complaint in its entirety; that no fine be assessed, and that the Respondent be granted a standard license for the period of time in question. DONE AND ENTERED this 24th day of June, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 24th day of June, 2005. COPIES FURNISHED: Janis L. Rosenthal, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station No. 3 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Karen Goldsmith, Esquire Jonathon Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether Respondent, Laurel Oaks Apartments ("Laurel Oaks"), discriminated against Petitioner, Lawrence Jacobs, Jr., on the basis of his race in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a 22-year-old African-American male. At all times relevant hereto, Petitioner was residing at Laurel Oaks in Temple Terrace, Florida. Petitioner co-habited at Laurel Oaks with a woman, Sade Newton. Petitioner and Newton were expecting a child during the time they resided at Laurel Oaks. Laurel Oaks Apartments is the Respondent. It is a large apartment complex comprised of several buildings. Approximately 70 to 75 percent of the residents of Laurel Oaks are minorities. Petitioner moved into Laurel Oaks on or about November 3, 2009. Petitioner and Newton signed an Apartment Lease Contract (the "Lease") on that date. Petitioner was assigned apartment number 8704 (the "Initial Unit") at a rental fee of $589.00 per month. The term of the Lease was one year. Almost immediately upon taking possession of the Initial Unit, Petitioner began to have some sort of confrontation with a neighboring tenant and his family (hereinafter referred to as the "Neighbor"). Specifically, Petitioner felt that the Neighbor's children were too loud, and that they were disrupting Petitioner's quiet enjoyment of his residence. Petitioner and the Neighbor argued numerous times, and Petitioner reported these arguments to Respondent. Upon receiving Petitioner's complaints about the Neighbor, Respondent offered to let Petitioner out of his Lease or move him to another apartment. In fact, Respondent agreed to allow Petitioner to move into an upgraded apartment with no increase in the rental fee. Respondent also agreed to waive the transfer fee normally associated with moving from one apartment to another. Petitioner believes that Respondent was dilatory in helping him move to a different apartment. However, there is no evidence to support that contention. The assistant community manager, Makell, indicated that she provided Petitioner with four possible options for moving. Some of the units she offered were undergoing painting or repairs and were not immediately available. Makell remembers only one telephone call from Petitioner concerning his potential interest in one of the available units. Petitioner remembers calling regularly to inquire about the units. Makell also remembers Petitioner ultimately asking for a specific apartment, number 8716 (the "Second Unit"). Petitioner and Newton signed a new lease (referred to herein as the "New Lease") for the Second Unit on February 8, 2010, and moved in on that date. The New Lease was also for a term of one year. The Second Unit was an upgrade from the Initial Unit, but Petitioner was not charged a higher rental fee. The Second Unit was, inexplicably, directly "across the way"1 from the apartment where the Neighbor resided. The evidence as to why Petitioner chose that unit or why he agreed to move into that unit was contradictory and confusing. Nonetheless, it is clear that Petitioner at some point voluntarily moved into the Second Unit. Shortly after Petitioner and Newton moved into the Second Unit, they had some sort of domestic squabble. Newton was pregnant with Petitioner's child, and there were some tensions between them. As a result of the squabble, someone called the police. When the police arrived, they talked with Petitioner and Newton for about an hour and then arrested Newton for domestic violence. Petitioner believes Newton had to be arrested pursuant to police policy, i.e., once the police are called to investigate domestic violence, they have to arrest one of the parties. There was no persuasive, non-hearsay evidence to confirm that such a policy exists. All charges against Newton were apparently dropped. However, the significance of Newton's arrest is that it constituted a breach of the New Lease. Paragraph 28 of the New Lease prohibits conduct which infringes on the quiet enjoyment of the apartment complex by other tenants. As a result, Laurel Oaks gave Petitioner and Newton a "Seven Day Notice of Noncompliance Without Opportunity to Cure" (the "Notice"), which effectively evicted them from the Second Unit. Petitioner does not deny that the New Lease was breached; he admitted so in a letter to Respondent dated May 12, 2010, about a week after the domestic violence arrest occurred. In his letter, Petitioner asks Respondent to reconsider its decision to uphold the provision in the New Lease and to rescind the Notice. Despite Petitioner's plea, Respondent stood by its Notice, and Petitioner was forced to move out of the apartment. At some point thereafter, Petitioner and a representative from Laurel Oaks did a "walk-through" of the Second Unit. A tenant who defaulted under a Laurel Oaks lease would normally be liable for any damages and for all rent that came due until the unit was re-leased. Laurel Oaks suggested at the time of the walk-through that Petitioner would receive a prorated refund for the current month (May) and would not be charged for the remainder of the Lease term. However, Petitioner, thereafter, got into an argument with the community manager, Heckinger, and Heckinger decided to pursue all allowable charges against Petitioner. As a result, when Petitioner received his ultimate receipt from Laurel Oaks, it included a demand for payment in the amount of $589.00 for termination of the Lease, forfeiture of Petitioner's $99.00 security deposit, and the remaining May rent amount ($114.00). Petitioner believes Heckinger and other employees of Laurel Oaks did not take him as seriously as other tenants. He believes Heckinger was "nasty" to him, but not to other tenants. Petitioner believes his request to move to a different apartment was not responded to in a timely fashion. Petitioner provided no evidence that any other residents were, in fact, treated differently than he was treated. There was no evidence presented that persons of color, including Petitioner, were treated differently than similarly situated persons. There was no persuasive evidence that any person affiliated with Laurel Oaks treated Petitioner badly or discriminated against him in any fashion. Laurel Oaks actually did more for Petitioner than was required or mandated by the Lease or by law. Petitioner was given the benefit of the doubt, was provided extra accommodation for his problems, and was treated appropriately. Petitioner also admitted that he did not believe the Laurel Oaks employees were racist.
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 denying Petitioner, Lawrence Jacob, Jr.'s, Petition for Relief in full. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of December, 2010.
