Findings Of Fact At all times pertinent to the issues herein, Respondent, John A. Green, Sr., operated the Sunshine Haven ACLF at 920 66th Street East, in Bradenton, Florida. His license authorized him to provide living facilities for 12 residents. On May 12, 1986, representatives of the Department's OLC visited Sunshine Haven for the purpose of conducting an annual survey for compliance with ACLF licensure requirements. A formal classification of deficiencies form (HRS-AA form 1806) was furnished and discussed with Mr. Green on June 23, 1986. Mr. Green's signature appears on the form. Among the discrepancies noted pertinent to this hearing were deficiencies in the food service area. They included: Garbage was not placed in covered, leakproof containers until properly disposed of. The wall by the stove was splashed with grease and dirt and was in need of a thorough cleaning, and Certain items, including cabinets and the gold freezer in the kitchen were dirty and in need of a thorough cleaning. All three discrepancies were classified as Class III deficiencies and were required to be corrected immediately. In mid-May, 1987, Loveda Cason Perry, then a senior public health nutritionist with the Department's OLC conducted another survey of the Respondent's facility. A report of discrepancies was prepared which reflects certain deficiencies in the food service area. These included: Litter and wastes were not kept in suitable covered receptacles until properly disposed of, and Certain equipment, including the refrigerator in the kitchen, and the walls, and the cabinets (both the outside doors and shelves), were dirty and in need of a thorough cleaning. Both were classified as repeat Class III deficiencies. Ms. Perry indicated that the discrepancies identified during the first survey in 1986 had been corrected after that inspection, but were again out of compliance at the time of the second report. There were spilled food items on the cabinet shelves which had not been cleaned up. These appeared not to be fresh spills which could easily be removed, but were, instead, dried on the shelf and obviously of long standing. The wall behind the stove was heavily grease-laden and appeared not to have been cleaned in a long time. The grease had attracted dirt which had adhered to it. She observed that garbage was kept in paper bags within the kitchen instead of in a closed can. There was no suitable receptacle for the storage of garbage in the kitchen - merely bags, and she noted that the outside of the facility, where the garbage cans were kept, was also out of compliance. There were no particulars given as to the outside storage nor was this charged. In inspections of licensed facilities, Ms. Perry utilizes a common sense approach. If a spill, for example, is obviously fresh, indicating there was insufficient time from time of spill to inspection to clean it, it would not be cited. Department inspectors do not attempt to create problems for licensees but merely to insure that facilities utilized for the care of the elderly and the infirm are properly maintained. In the instant case, there is no doubt in Ms. Perry's mind that spills appearing on the shelves in the closet and elsewhere in the kitchen were not fresh but old. The same can be said for the spills in the refrigerator. All of the cited discrepancies, in Ms. Perry's opinion, constituted a health hazard due to the possible attraction of vermin and roaches, and the resultant possibility of contamination of foodstuffs. When an inspection is done, the inspectors go over the deficiencies with the operator immediately and advise him or her to write down the discrepancies. The Department does not issue a handwritten list of deficiencies at the time of inspection because experience has shown that often the operator will attempt to excuse himself from compliance by claiming he cannot read the inspector's handwriting. Consequently, if the deficiencies are dictated by the inspector to the licensee, who thereafter writes them down, there can be no possibility of misunderstanding. At the time of the survey, a correction date is given for each deficiency. Often the written report of deficiencies does not arrive at the facility until after the scheduled correction date. However, no reinspection is accomplished until such time as the operator has received the written classification of deficiencies form and been given a reasonable opportunity to make corrections. Respondent denied there was dirt on the walls, in the cupboards, or on the counters. Mrs. Green, manager of the facility, contends that she has had the walls scrubbed down several times, to the point where, at the time of the inspection, Ms. Perry commented that the walls had been scrubbed so often the paint was coming off. Ms. Perry does not dispute the fact that the majority of the walls were clean. She contends merely, and the evidence of this is not controverted, that that portion of the wall behind the stove, the portion which was cited in the classification of deficiency, had an accumulation of grease and dirt on it and there is no evidence, save Mrs. Green's denial, that this was not so. Mrs. Green also contends that the cupboards had been painted and cleaned shortly before the inspection and that there was only minimal spillage if any. Mrs. Green also asserts that the refrigerators in the kitchen were cleaned daily around the sides and front and weekly in the back. On the day of inspection, she admits, there was spilled berry juice and spilled iced-tea in the kitchen refrigerator. This was, she contends, due to the fact that the prior day, she and her husband had picked 50 pounds of fresh strawberries which were stored in the refrigerator and which leaked slightly on the equipment. There is no evidence to show how the berries were stored, but the evidence clearly indicates, and the Greens admit, that spills existed as a result of the berries and as a result of their 10 year old son pouring himself some tea and failing to wipe up his spill. Mrs. Green strongly contends that there is and always has been a covered trash container meeting Department requirements in the kitchen and this container was present on the date of inspection. She admits there were three paper bags full of other paper bags there as well, but, she claims, there was no garbage in any of them. The day before, she had done a large amount of grocery shopping for the facility and stored the empty bags in other bags prior to disposition. The inspector came early in the morning of the following day before she could remove the bags. Ms. Perry admits she did not stick her hand into the paper bags to see what was in there but is sure she looked into them and observed garbage, not merely other bags. On balance, and considering the relative probabilities of the testimony, it is found that Ms. Perry's observation is the more credible. Mr. Green contends that the issue of cleanliness is subjective. He is adamant in his contention that there was no accumulation of dirt any place in the Sunshine Haven kitchen at the time of Ms. Perry's inspection. Anyone who wishes to do so can find superficial dust at any given time. Superficial dust, however, according to Ms. Perry, would not result in a write-up. There was substantial dispute between the parties as to whether or not the Greens were living, as a family, in the facility in May, 1987, at the time of the second inspection. Ms. Perry contends they were not but Mr. Green indicates he fired the former staff person residing there in 1986 and moved in with his family in June of that year. The Green family, including three boys, ages 19, 17, and 10, lived in the house until January 17, 1989. It is during this time the second survey was done. Whether the Greens lived in the house or not is irrelevant, however. The issue is whether, at the time of Ms. Perry's inspection, the deficiencies she noted on the survey form existed. It is found they did.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary, Department of Health and Rehabilitative Services, enter a Final Order imposing an administrative fine against the licensee in the total amount of $500.00. RECOMMENDED this 11th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1989. COPIES FURNISHED: Edward A. Haman, Esquire DHRS. Office of Licensure and Certification 7827 North Dale Mabry Highway Tampa, Florida 33614 John A. Green, Sr. 920 - 66th Street East Bradenton, Florida 33508 John A. Green, Sr. 1605 10th Avenue West Palmetto, Florida 33561 John Miller, Esquire General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether a portion of Florida Administrative Code Rule 67-48.0072 is an invalid exercise of delegated legislative authority.
Findings Of Fact The Petitioner is a limited partnership and developer of affordable housing in Florida. The Petitioner is seeking to construct a 116-unit affordable housing family apartment complex ("Elmwood Terrace") in Fort Myers, Lee County, Florida. The Petitioner has standing to initiate and participate in this proceeding. The Respondent is a public corporation organized under Chapter 420, Florida Statutes (2010), to administer state programs that provide financial support to developers seeking to construct affordable housing. Such support is provided through a variety of mechanisms, including the use of federal tax credits. The federal tax credit program was created in 1986 to promote the construction and operation of privately-developed affordable housing. The tax credits relevant to this proceeding provide a dollar-for-dollar credit against federal tax liabilities for a period of ten years. The Respondent is the designated Florida agency responsible for distribution of the federal tax credits. The tax credits are awarded pursuant to a "Qualified Allocation Plan" (QAP) that must be annually approved by the Governor and adopted as an administrative rule by the Respondent. As a matter of course, developers receiving the federal tax credits sell them through syndicators for discounted cash. The sale of the tax credits generates debt-free cash equity for developers. Developers seeking financial support to build affordable housing units submit applications to the Respondent during an annual competitive process known as the "Universal Cycle." Every three years, the Respondent commissions a study (the "Shimberg Report"), which measures, within each Florida county, the number of "cost-burden" renters earning 60 percent or less of an area's median income (AMI) who pay more than 40 percent of their income in rent. The AMI is determined by the federal government. The cost-burden households are further classified into four groups: families, the elderly, farm workers, and commercial fishermen. The Shimberg Report also assesses needs related to homeless people in the state. Developers seeking to obtain affordable housing financing are required to set aside a portion of the proposed units for income-limited residents. Access to affordable housing units is generally targeted towards persons receiving no more than 60 percent of the AMI. The Universal Cycle process allows the Respondent to target specific housing deficiencies in terms of geographic availability and population demographics and to preserve the stock of existing affordable housing. During the Universal Cycle process, the Respondent identifies areas where additional affordable housing is unnecessary, to discourage additional development in weak markets and to encourage development in those locations where there is a lack of access to affordable housing. The Respondent classifies areas where there is little need for additional affordable housing as "Location A" areas. Each application filed during the Universal Cycle is evaluated, scored, and competitively ranked against other applications filed during the same Universal Cycle. After the Respondent completes the competitive ranking of the applications submitted in the Universal Cycle, the applicants are provided with an opportunity to review and comment on the evaluation and scoring of the proposals. Applicants may also cure defects in their own proposals. After the close of the review and comment period, the Respondent publishes a revised competitive ranking of the proposals. Developers may challenge the second ranking through an administrative hearing. After the second ranking process is final, developers achieving an acceptable score receive preliminary funding commitments and proceed into a "credit underwriting" evaluation process. The credit underwriting process is governed by Florida Administrative Code Rule 67-48.0072. The Respondent selects an independent credit underwriter who reviews each proposal according to requirements set forth by administrative rule (the "Credit Underwriting Rule"). The cost of the credit underwriting review is paid by the developer. The credit underwriter considers all aspects of the proposed development, including financing sources, plans and specifications, cost analysis, zoning verification, site control, environmental reports, construction contracts, and engineering and architectural contracts. The responsibility for the market study is assigned by the credit underwriter to an independent market analyst. The credit underwriter prepares a report for each applicant invited into the process. The reports are submitted to the Respondent's nine-member, statutorily-created Board of Directors (Board). The Board approves or denies each application for financial support. The Petitioner applied for funds for the Elmwood Terrace project during the 2007 Universal Cycle. The Petitioner's application received a perfect score, maximum points, and was allocated tax credits in the amount of $1,498,680. The Petitioner thereafter entered the credit underwriting process. The credit underwriting analysis was performed by Seltzer Management Group (SMG). SMG contracted with a market analyst, Vogt, Williams & Bowen Research, Inc. (VWB), to prepare the required market study. The affordable units at Elmwood Terrace were initially intended for persons receiving incomes no more than 60 percent of the AMI. The VWB research indicated that the Elmwood Terrace project would adversely affect the existing affordable housing developments, if the Elmwood Terrace units were available to the 60 percent AMI population. The existing affordable housing developments, also serving the 60 percent AMI population, included two developments that had participated in the Respondent's "Guarantee Fund" program, addressed elsewhere herein. VWB determined that the impact of the Elmwood Terrace project on the existing developments could be ameliorated were some of the Elmwood Terrace units targeted during "lease-up" to persons at income levels of not more than 50 percent of the AMI. The lease-up period is the time required for a new development to reach anticipated occupancy levels. The issue was the subject of discussions between the Petitioner, VWB, and SMG. To resolve the anticipated negative impact on the existing affordable housing developments, the Petitioner agreed to target the 50 percent AMI population. In September 2008, the credit underwriter issued his report and recommended that the Petitioner receive the previously-allocated tax credits. On September 22, 2008, the Respondent's Board accepted the credit underwriting report and followed the recommendation. In the fall of 2008, after the Petitioner received the tax credits, the nation's economic environment deteriorated considerably. As a result, the syndicator with whom the Petitioner had been working to sell the tax credits advised that the sale would not occur. The Petitioner was unable to locate an alternate purchaser for the tax credits. The Petitioner considered altering the target population of the project in an attempt to attract a buyer for the tax credits, and there were discussions with the Respondent about the option, but there was no credible evidence presented that such an alteration would have resulted in the sale of the Petitioner's tax credits. Lacking a buyer for the tax credits, the Petitioner was unable to convert the credits to cash, and they were of little value in providing funds for the project. The Petitioner was not alone in its predicament, and many other developers who received tax credits in the 2007 and 2008 Universal Cycles found themselves unable to generate cash through the sale of their tax credits. In early 2009, Congress adopted the American Recovery and Reinvestment Act of 2009 (PL 111-5), referred to herein as ARRA, which incorporated a broad range of economic stimulus activities. Included within the ARRA was the "Tax Credit Exchange Program" that provided for the return by the appropriate state agency of a portion of the unused tax credits in exchange for a cash distribution of 85 percent of the tax credit value. The State of Florida received $578,701,964 through the Tax Credit Exchange Program. The ARRA also provided additional funds to state housing finance agencies through a "Tax Credit Assistance Program" intended to "resume funding of affordable housing projects across the nation while stimulating job creation in the hard-hat construction industry." On July 31, 2009, the Respondent issued a Request for Proposals (RFP 2009-04) to facilitate the distribution of the ARRA funds. The Respondent issued the RFP because the 2009 QAP specifically required the Respondent to allocate the relevant federal funds by means of a "competitive request for proposal or competitive application process as approved by the board." The 2009 QAP was adopted as part of the 2009 Universal Cycle rules. Projects selected for funding through the RFP would be evaluated through the routine credit underwriting process. Participation in the RFP process was limited to developers who held an "active award" of tax credits as of February 17, 2009, and who were unable to close on the sale of the credits. The RFP included restrictions against proposals for development within areas designated as "Location A." Although the location of the Elmwood Terrace project had not been within an area designated as "Location A" during the 2007 Universal Cycle process, the Respondent had subsequently designated the area as "Location A" by the time of the 2009 Universal Cycle. The RFP also established occupancy standards for projects funded under the RFP that exceeded the standards established in the Universal Cycle instructions and an evaluation process separate from the Universal Cycle requirements. Although the restrictions in the RFP would have automatically precluded the Petitioner from being awarded funds, the Petitioner submitted a response to the RFP and then filed a successful challenge to the RFP specifications (DOAH Case No. 09-4682BID). In a Recommended Order issued on November 12, 2009, the Administrative law Judge presiding over the RFP challenge determined that certain provisions of the RFP, including the automatic rejection of Location A projects, the increased occupancy standards, and the RFP evaluation criteria, were invalid. The Respondent adopted the Recommended Order by a Final Order issued on December 4, 2009, and invited the Petitioner into the credit underwriting process by a letter dated December 9, 2009. The credit underwriter assigned to analyze the Petitioner's project was SMG, the same credit underwriter that performed the original analysis of the Petitioner's project during the 2007 Universal Cycle. SMG retained Meridian Appraisal Group, Inc. (Meridian), to prepare the required market study. The Respondent was not consulted regarding the SMG decision to retain Meridian for the market analysis. The decision to retain Meridian for the market analysis was entirely that of SMG. The Respondent did not direct SMG or Meridian in any manner regarding the assessment or evaluation of any negative impact of the proposed project on existing affordable housing developments. Meridian completed the market study and forwarded it to SMG on January 26, 2010. The Meridian market analysis included a review of the relevant data as well as consideration of the actual economic conditions experienced in Lee County, Florida, including the extremely poor performance of the existing housing stock, as well as significant job losses and considerable unemployment. The Meridian market analysis determined that the Elmwood Terrace development would have a negative impact on two existing affordable housing apartment developments that were underwritten by the Respondent through a Guarantee Fund created at Section 420.5092, Florida Statutes, by the Florida Legislature in 1992. The existing Guarantee Fund properties referenced in the SMG recommendation are "Bernwood Trace" and "Westwood," both family-oriented apartment developments within five miles of the Elmwood Terrace location. The Guarantee Fund essentially obligates the Respondent to satisfy mortgage debt with the proceeds of Florida's documentary stamp taxes, if an affordable housing development is unable to generate sufficient revenue to service the debt. Because the Guarantee Fund program essentially serves to underwrite the repayment of mortgage debt for a "guaranteed" affordable housing development, the program increases the availability, and lowers the cost, of credit for developers. The Guarantee Fund program has participated in the financing of more than 100 projects, most of which closed between 1999 and 2002. Since 2005, the Respondent has not approved any additional Guarantee Fund participation in any affordable housing developments. The Respondent's total risk exposure through the Guarantee Fund is approximately 750 million dollars. Prior to October 2008, no claims were made against the Guarantee Fund. Since November 2008, there have been eight claims filed against the Guarantee Fund. Affordable housing financing includes restrictions that mandate the inclusion of a specific number of affordable housing units. Such restrictions are eliminated through foreclosure proceedings, and, accordingly, access to affordable housing units can be reduced if a development fails. Presuming that the eight claims pending against the Guarantee Fund eventually proceeded through foreclosure, as many as 2,300 residential units could be deducted from the stock of affordable housing. When there is a claim on the Guarantee Fund, the Respondent has to assume payment of the mortgage debt. The claims are paid from the Guarantee Fund capital, which is detrimental to the Respondent's risk-to-capital ratio. The risk-to-capital ratio is presently four to one. The maximum risk-to-capital ratio acceptable to rating agencies is five to one. The eight claims against the Guarantee Fund have ranged between ten and 18 million dollars each. The Respondent's bond rating has declined because of the eight claims. A continued decline in the Respondent's bond rating could result in documentary stamp tax receipts being used for payment of Guarantee Fund claims and directed away from the Respondent's programs that are intended to support the creation of affordable housing. In an effort to prevent additional claims against the Guarantee Fund, the Respondent has created the "Subordinate Mortgage Initiative" to provide assistance in the form of two- year loans to troubled Guarantee Fund properties. When preparing the 2010 market study, Meridian did not review the VWB market analysis performed as part of the 2007 application. Although the Petitioner has asserted that Meridian should have reviewed the 2007 VWB analysis, there is no evidence that Meridian's decision to conduct an independent market study without reference to the prior market review was inappropriate. On February 8, 2010, SMG issued a recommendation that the Petitioner's funding request be denied "because of the proposed development's potential financial impacts on developments in the area previously funded by Florida Housing and an anticipated negative impact to the two Guarantee Fund properties located within five miles of the proposed development." There is no evidence that the Meridian analysis was inadequate or improperly completed. There is no evidence that the SMG's reliance on the Meridian analysis was inappropriate. For purposes of this Order, the Meridian analysis and the SMG credit underwriting report have been accepted. Elmwood Terrace, a newer development with newer amenities, would compete for residents with the Bernwood Trace and Westwood developments. The financing for Bernwood Trace and Westwood was premised on projections that the affordable housing units would be leased to the 60 percent AMI population; however, the developments have been unable to maintain full occupancy levels, even though a number of units in the two properties are leased at reduced rates based on 50 percent AMI income levels. A rent reduction implemented by an existing development, whether based on economic conditions or resulting from competition, constitutes a negative impact on the development. There is no credible evidence that the occupancy rates are attributable to any difficulty in management of the two developments. It is reasonable to conclude that the leasing issues are related to economic conditions present in Lee County, Florida. In January 2010, VWB conducted an alternative market analysis. The VWB analysis was not provided to SMG or to the Respondent at any time during the credit underwriting process. Based on the 2010 VWB analysis, the Petitioner asserted that economic conditions in Lee County, Florida, have improved since the first credit underwriting report was completed in 2008 and that the improvement is expected to continue. There is no noteworthy evidence that economic conditions have improved or will significantly improve in the Lee County, Florida, market in the predictable future, and the VWB analysis is rejected. The Petitioner offered to mitigate any negative impact on the Guarantee Fund properties by committing affordable units to 50 percent AMI income levels. Given the existing economic and rental market conditions in Lee County, Florida, the evidence fails to establish that the offer would actually alleviate the negative impact on the affected Guarantee Fund developments. The 2010 VWB analysis states that there is substantial unmet demand for housing at 50 percent AMI and that there will be no impact on the Guarantee Fund units if the Elmwood Terrace units were set aside for such individuals. There is no credible evidence that there is a substantial and relevant unmet affordable housing demand in Lee County, Florida. The VWB analysis is rejected. Following the completion of each annual Universal Cycle process, the Respondent actively solicits feedback from developers and the public and then amends the Universal Cycle requirements to address the issues raised, as well as to reflect existing affordable housing needs and general concerns of the Board. The amendments are applicable for the following Universal Cycle. In 2009, the Respondent amended subsection (10) of the Credit Underwriting Rule as part of the annual revisions to the Universal Cycle process. The relevant amendment (referred to by the parties as the "Impact Rule") added this directive to the credit underwriter: The Credit Underwriter must review and determine whether there will be a negative impact to Guarantee Fund Developments within the primary market area or five miles of the proposed development, whichever is greater. The amendment was prompted by the Respondent's experience in the fall of 2008 when considering two separate applications for affordable housing financing. The potential negative impact of a proposed development on an existing Guarantee Fund property was central to the Board's consideration of one application, and the Board ultimately denied the application. In the second case, the Board granted the application, despite the potential negative impact on a competing development that was not underwritten by the Guarantee Fund. The intent of the language was to advise developers that the existence of Guarantee Fund properties within the competitive market area would be part of the credit underwriting evaluation and the Board's consideration. Notwithstanding the language added to the rule, the credit underwriter is charged with reviewing the need for additional affordable housing. Even in absence of the added language, consideration of any negative impact to competing developments based on inadequate need for additional affordable housing would be appropriate. In rendering the 2010 credit underwriting report on Elmwood Terrace, the credit underwriter complied with the directive. Prior to determining that the Petitioner's funding application should be denied, the Respondent's Board was clearly aware of the Petitioner's application, the credit underwriting report and market analysis, and the economic conditions in Lee County, Florida. There is no credible evidence of any need for additional affordable housing in Lee County, Florida. There is no credible evidence that the Lee County, Florida, market can sustain the addition of the units proposed by the Petitioner without adversely affecting the financial feasibility of the existing Guarantee Fund developments. The Board was aware that the Elmwood Terrace development could attract residents from the nearby Guarantee Fund properties and that local economic conditions threatened the financial viability of the properties. Given current economic conditions, approval of the application at issue in this proceeding would reasonably be expected to result in a negative impact to existing affordable housing developments. The protection of Guarantee Fund developments is necessary to safeguard the resources used to support the creation and availability of affordable housing in the state.
The Issue In Case No. 99-2748, should Elvira Demdam, d/b/a San Juan Retirement Home, be administratively fined for operating an unlicensed facility, and if so, in what amount? In Case No. 99-2755, should Elvira Demdam, d/b/a Ingleside Retirement Home, be administratively fined for exceeding the home's licensed capacity, and if so, in what amount?
Findings Of Fact AHCA is the state agency responsible for licensing and regulation of ALFs in Florida. Respondent, Elvira Demdam, operates both Ingleside Retirement Home and San Juan Retirement Home in Jacksonville, Florida. Gloria Wolfe is employed by AHCA to inspect ALFs for compliance with state and federal regulations for such facilities. Elvira Demdam is the licensee for Ingleside Retirement Home. The effective date of the license for Ingleside was October 27, 1997. Its expiration date was October 26, 1999. On April 26, 1999, Ms. Wolfe surveyed a facility doing business as San Juan Retirement Home due to a complaint that San Juan was operating as an unlicensed ALF. During Ms. Wolfe's inspection, San Juan Retirement Home had four residents, all of whom were being provided personal services by the home, including assistance with meals, administration of medications, and assistance with other essential activities of daily living. Therefore, the San Juan facility was being operated as an ALF on April 26, 1999. In a letter dated April 27, 1999, AHCA imposed a moratorium on admissions, effective April 26, 1999, on Ingleside Retirement Home, because Ms. Demdam had an interest in Ingleside Retirement Home and an interest in San Juan Retirement Home, which was operating without a license. The moratorium for Ingleside was to remain in force until the unlicensed facility (San Juan) ceased operation, and no residents could be readmitted without approval of AHCA. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's report and because he believed that previous sanctions had been recommended against the Ingleside Retirement Home within the licensure period for the same type of deficiency. However, at hearing, he did not specify any previous sanctions against Ingleside, similar or otherwise. Elvira Demdam is the licensed administrator of Ingleside Retirement Home and should have known of the legal requirement that San Juan Retirement Home be licensed. Indeed, by her own admission, Ms. Demdam had been a nursing home administrator for four years, knew of the licensure requirement, and had been attempting to license the San Juan facility since at least 60 days before the property was transferred to her. San Juan was licensed to another person at the time Ms. Demdam took it over. That prior license had expired in December 1998, and Ms. Demdam did not get San Juan Retirement Home licensed in her name until July 1999. Ms. Demdam's exhibits support her testimony that much of her license application paperwork for San Juan Retirement Home was lost in the mail or within AHCA and that ACHA repeatedly required that she re-submit the same documents. However, she did not establish that the Agency failed to grant or deny her application within 90 days of submission of all necessary application items. The fact remains that on April 26, 1999, Ms. Demdam was operating San Juan Retirement Home without a valid ALF license. Although Ms. Demdam asserted that one or more of the San Juan residents were non-blood relatives who had lived with her as family members since 1995, she offered no corroborative evidence on this issue, and this assertion is not found to be credible. Ms. Wolfe also participated in a May 4, 1999, monitoring visit and survey of Ingleside Retirement Home. At that time, she found Ingleside to be operating in excess of its licensed capacity. Ingleside Retirement Home is licensed for 18 residents, but in fact, had 19 residents on that date. Ms. Wolfe personally reviewed residents, room by room, and made a census of Ingleside Retirement Home on May 4, 1999. Her census shows that a nineteenth resident, S.W., had been admitted to Ingleside in March 1999. Ms. Wolfe's investigation revealed that this resident was not noted in Ingleside's admissions/discharge log. Despite arguments that this deficiency constituted a Class III violation, an A-004 "not classified" deficiency was actually issued. (See ACHA Exhibit 4, page 3) Ms. Demdam's explanation for the extra resident in Ingleside Retirement Home was that she had taken in S.W. at the request of a case worker for the Department of Children and Family Services (DCF) as an emergency placement on a weekend for a projected stay of only two to four weeks but that due to unforeseen circumstances, DCF had not removed S.W. timely. It is unclear from this record whether the patient, S.W., put the census of Ingleside over 18 patients in March, the time that she was first taken in. It is also unclear exactly how long S.W. caused Ingleside's census to exceed the 18 patients provided for on its license, but as of May 1999, Ms. Demdam was providing care for S.W. and another Ingleside resident, J.J., without pay. Mr. Dickson testified that he recommended a $1000.00 fine as a sanction for having the one extra resident in Ingleside Retirement Home on May 4, 1999, because of prior sanctions recommended within the licensure period for the same type of deficiency. However, the only similar deficiency or sanction he noted during his testimony was the Ingleside moratorium which had been based upon the lack of licensure of the San Juan facility. By a letter dated May 7, 1999, AHCA notified the Respondent of the findings supporting the imposition of a moratorium at Ingleside. Ms. Demdam testified credibly that she moved S.W. out of Ingleside Retirement Home as soon as she was notified and that she cleared-out the four residents of San Juan Retirement Home as soon as possible. Mr. Dickson views both ALF citations very seriously because operating an ALF without a license can be prosecuted by the State Attorney as a third-degree felony (see Section 400.408(1)(b)-(c), Florida Statues, (Supp. 1998) and because he views Ms. Demdam's long practice and licensure in the ALF field to demonstrate her knowing and willful disregard of the law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding Respondent guilty of operating an unlicensed facility and imposing an administrative fine in the amount of $1,000 in DOAH Case No. 99-2748; and That the Agency for Health Care Administration enter a final order finding Respondent guilty of exceeding her licensed capacity at Ingleside Retirement Home, and imposing an administrative fine in the amount of $500.00 in DOAH Case No. 99-2755. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3408D Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elvira Demdam, Administrator San Juan Retirement Home Un-Licensed 6561 San Juan Avenue Jacksonville, Florida 32210 Elvira Demdam, Administrator Ingelside Retirement Home 732 Camp Milton Lane Jacksonville, Florida 32220 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondents Adams Group Home, Inc., and Joyce Adams' ("Respondents") group home licensure renewal applications should be denied.
Findings Of Fact Parties and Background APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential centers, pursuant to sections 20.197 and 393.067, Florida Statutes. Under section 393.063(19), a group home facility means a residential facility "which provides a family living environment including supervision and care necessary to meet the physical, emotional, and social needs of its residents." The capacity of such a facility must be at least four but not more than 15 residents. Respondents are licensees of two group home facilities, known as Adams Group Home #1, located at 2400 Oleander Drive, Miramar, Florida 33023, and Adams Group Home #2, located at 7131 Southwest 16th Street, Pembroke Pines, Florida 33023. Respondents' group homes provide a family living environment within a residential, single-family structure with a combined total of not more than 12 adult residents with developmental disabilities. Joyce Adams is Adams Group Homes' corporate officer. Ms. Adams has been licensed through APD to provide group home services for 18 years. Group homes licensed by APD are required to apply for a renewal license every year. The renewal process involves a review of the applications to make sure they are accurate and complete and an observation by a licensing specialist at the facilities to ensure the facilities are in compliance with the applicable statutes and administrative rules. Every year prior to 2018, including 2014 through 2017, Respondents' group home licensure renewal applications for Adams Group Home #1 and Adams Group Home #2 were approved by APD. No evidence was presented at hearing demonstrating that Respondents have ever been the subject of any corrective action plan or proposed disciplinary agency action in the form of an administrative fine, suspension or revocation of a license, or moratorium on admissions, prior to APD's March 13, 2018, denial letter. The March 13, 2018, Denial Letter Against this backdrop, on December 20, 2017, Respondents submitted applications to APD for renewal of the licenses of Adams Group Home #1 and Adams Group Home #2, which were set to expire in March 2018. By letter dated March 13, 2018, APD notified Respondents of the denial of their group home licensure renewal applications. APD's grounds for the denial of the license applications are set forth in the denial letter in four counts. In Counts I and II, APD alleges the Department of Children and Families ("DCF") commenced investigations which resulted in DCF's verified findings of abuse, neglect or exploitation against Ms. Adams in February 2014 and December 2015, respectively. APD further alleges that based on section 393.0673(2), it "may" deny an application for licensure based solely on DCF's verified findings. In Count III, APD alleges Respondents used video cameras in the common areas in 2016 and 2017 without written consents for the common areas in violation of Florida Administrative Code Rule 65G-2.009(7), which constitutes a Class II violation. In "Count IIII," APD alleges that after Hurricane Irma struck south Florida on September 10, 2017, Respondents had "no power at the group home," Respondents utilized a "makeshift grill" less than ten feet from the structure, and failed to care for its residents. APD specifically alleges that on September 19, 2017, a resident of Adams Group Home #2 "was taken to the emergency room at Memorial Regional Hospital for confusion and fever." APD further alleges that Respondents' conduct described in "Count IIII" constitutes Class I violations, and that the conduct violates rule 65G-2.009(1)(d) with regard to the minimum standards of facilities to ensure the health and safety of the residents and address the provision of appropriate physical care and supervision; adhering to and protecting resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13; and section 393.13(3)(a) and (g), relating to humane care, abuse, neglect, or exploitation. Count I The parties stipulated that on December 29, 2013, DCF commenced an investigation of Respondents' group homes, and that on February 25, 2014, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, APD provided no witnesses with first-hand knowledge of the specific facts involved in the violation. Instead, APD presented unsigned DCF investigative reports and a DCF supervisor's testimony regarding the general investigative process. At hearing, Ms. Adams explained the facts and circumstances surrounding the violation. Ms. Adams testified the incident involved M.K., a 41-year-old female resident of Respondents' group home since 2006, who is developmentally disabled. According to Ms. Adams, on Sunday, December 29, 2013, M.K. was taken by personal car to the emergency room at Memorial Hospital, Pembroke Pines, where she was admitted. Ms. Adams testified that M.K. had been coughing for a few days, and she had consulted with a nurse practitioner about M.K.'s condition on Thursday, December 26, 2013. However, M.K.'s condition had not improved by Sunday, she looked weak, and Ms. Adams did not want to wait until Monday for M.K. to be seen by a doctor. M.K. was transported to the hospital on Sunday, December 29, 2013, by a facility employee. Emergency (911) had been called for M.K. on approximately eight occasions prior to December 29, 2013. Ms. Adams persuasively and credibly testified she would not have hesitated to call 911 for M.K. if she felt it was necessary. On Monday, December 30, 2013, the next business day, Ms. Adams provided an incident report to APD. Ms. Adams also immediately notified M.K.'s waiver support coordinator. M.K. returned to Respondents' group home after her release from the hospital where she has continued to reside since then. Count II The parties stipulated that on November 4, 2015, DCF commenced an investigation of Respondents' group homes, and that on December 12, 2015, DCF closed its investigation with verified findings of abuse, neglect, or exploitation on the part of Ms. Adams. APD was aware of DCF's verified findings upon completion of DCF's investigation. At hearing, Ashley Cole, regional program supervisor for the southeast region of APD, testified about the facts and circumstances surrounding the violation. The violation involved the use of residents' funds to request a new support coordinator.1/ Specifically, in November 2015, Ms. Cole conducted a review of client files at one of Respondents' group homes, including a review of financial ledgers, and saw disbursements of money from three residents to an attorney, totaling $1,300.00. When asked about this by Ms. Cole, Ms. Adams explained that the funds were used to pay an attorney to write letters on behalf of the three residents requesting new support coordinators. The funds were used to benefit the three residents and the letters were written by Respondents' attorney on behalf of the three residents. At hearing, Ms. Cole testified that it is typical for an APD client or the client's guardian to request a new support coordinator, not the group home owner, and that it is not required that a request for a new support coordinator be in writing. Although it may not be typical for the group home owner to request a new support coordinator in writing on behalf of the residents, it is not prohibited by law. None of the three residents had guardians or family members to assist in the handling of their affairs. Ms. Adams testified that she had attempted to obtain assistance from the current support coordinator to act on the residents' behalf, but to no avail. Two of the residents still resided at Respondents' group home as of the beginning of 2018; the other resident died about a year after the incident for reasons unrelated to the written requests for a new support coordinator. Count III Delmarva Foundation, n/k/a Qlarant, has contracted with the State of Florida to evaluate the performance of group home providers such as those operated by Respondents. On May 31, 2016, Delmarva Foundation Quality Assurance Reviewer Martina Pocaterra performed an unannounced observation visit at one of Respondents' group homes. Ms. Pocaterra observed video cameras in the common areas of the group home. The next morning, Respondents provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas of the group home. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. On October 3, 2017, Delmarva Foundation Quality Assurance Reviewer Michelle Ceville performed a provider discovery review at one of Respondents' group homes. On this occasion, Ms. Ceville observed video cameras in the common areas of the group home. Respondents again provided consent forms from residents for use of cameras in the bedrooms, but not for use in the common areas. Because there were no consent forms signed by residents allowing the use of video cameras in the common areas, an alert notification form was submitted to APD. The clear and convincing evidence adduced at hearing demonstrates that Respondents violated rule 65G-2.009(7)(a) and (b) by failing to obtain written consent of residents for the use of video monitoring equipment in the common areas. "Count IIII" On September 10, 2017, Hurricane Irma struck Florida. After the hurricane, APD contacted group homes to ensure that the homes had electricity, lights, and air conditioning, and that the homes were safe. On September 15, 2017, Adams Group Home, Inc., informed APD that Adams Group Home #2 had electricity and running water, and that Adams Group Home #2 residents had not been evacuated. On September 19, 2017, Kimberly Robinson, an APD human services program analyst, conducted a wellness check at one of Respondents' group homes. It is unclear from Ms. Robinson's testimony which group home she actually visited. However, Ms. Robinson observed that the home had air conditioning, and that "everything in the home was fine." On September 19, 2017, Pembroke Pines Assistant Fire Marshal Shawn Hallich visited Adams Group Home #2 and conducted an inspection. He testified that he "did a walk around real quick," and that on the enclosed outdoor patio on the back porch of the home, he noticed "a pot on two blocks with two pieces of wood and an open flame with charcoal, and something . . . being cooked on it." According to Mr. Hallich, the cooking device was located on the back patio "approximately, probably 10 feet from the sliding glass door, maybe a little bit less than that." Mr. Hallich did not use any device to measure the distance of the cooking device from the structure of the home. Mr. Hallich testified that the cooking device was a safety hazard because there was an open flame and there was nothing to prevent the cooking device from being tipped over or falling over on its own. During his inspection, Mr. Hallich also observed that there was no air conditioning inside the home. There was some electricity inside the home, but not enough voltage necessary for the air conditioning system to operate. However, there were fans located and operating in every room of the home, and the windows were open. Mr. Hallich testified it was hot, but he did not use any device to measure the temperature inside the home. Mr. Hallich also acknowledged that if the fans were on inside the home, the circulation would have made it feel cooler inside the home. On September 19, 2017, Mr. Hallich issued a Notice of Violation, stating the nature of the violation as: "No air conditioning and unsafe cooking practices being conducted." Mr. Hallich recommended the following action be taken: (1) "Must relocate all residence [sic] until all power has been restored[; (2)] All cooking must be conducted at least 10 feet away from the structure using a commercial cooking appliance." As to the violation found by Mr. Hallich with respect to the outside cooking device, Ms. Adams asked Mr. Hallich whether she could use it outside, and he told her that "it had to be 10 feet away from the structure for cooking." In issuing the Notice of Violation with respect to the cooking device, Mr. Hallich specifically relied on section 10.10.6.1 of the Florida Fire Prevention Code which provides as follows: For other than one- and two-family dwellings, no hibachi, grill, or other similar devices used for cooking, heating, or any other purpose shall be used or kindled on any Balcony, under any overhanging portion, or within 10 ft (3 m) of any structure. Mr. Hallich's reliance on section 10.10.6.1 of the Florida Fire Prevention Code is misplaced because Adams Group Home #2 is a single-family dwelling. As a single- family dwelling, Respondents' group home is exempt from section 10.10.6.1. In any event, APD failed to present clear and convincing evidence that the cooking device was located within ten feet of the single-family dwelling. In addition, APD failed to present clear and convincing evidence that any residents of the group home were taken to the hospital or were not properly cared for by Respondents because of the lack of air conditioning. In sum, APD failed to present clear and convincing evidence at hearing to demonstrate a violation of rule 65G- 2.009(1)(d) and section 393.13.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Agency for Persons with Disability enter a final order granting Respondents' applications for licensure renewal.3/ DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 22nd day of August, 2018.
Findings Of Fact Fort Lauderdale Retirement Home is an Adult Congregate Living Facility (ACLF) situated at 401 Southeast 12th Court, Fort Lauderdale, Florida 33316 and was licensed as such during times material herein. On July 19, 1985, an appraisal visit was conducted by personnel from Petitioner's Miami Office of Licensure and Certification to determine compliance with applicable rules and regulations for ACLF's. Petitioner's appraisal and survey team made two requests to the facility's administrator, Jacqueline Kidwell, to examine the contents of a medication cabinet on the premises and was denied permission to do so. One of Petitioner's appraisal team surveyors, Jane Bavetta, observed what appeared to be medication in two amber colored jugs located in the bottom of a cabinet in the administrator's office, which appeared to be the type container medication is usually stored. (Petitioner's Exhibit 1). Petitioner has advised Respondent that it intends to levy an administrative fine in the amount of three hundred dollars ($300). Another of Petitioner's appraisal surveyors, who is no longer employed by Petitioner Elizabeth Mazlin, also made a request of Ms. Kidwell to inspect the cabinet in the administrator's office which she suspected to contain medication and was denied permission to do so by Ms. Kidwell.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, Department of Health and Rehabilitative Services, Office of Licensure and Certification, enter a Final Order imposing a three hundred dollar ($300) fine against Respondent, Fort Lauderdale Retirement Home, Inc. payable to Petitioner within thirty (30) days after entry of Petitioner's Final Order. RECOMMENDED this 3rd day of August, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1987. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 86-1103 Rulings on Petitioner's Proposed Findings of Fact Paragraph 2 first sentence rejected as irrelevant to the issues posed. Paragraph 4 rejected as argument and not a finding of fact. Paragraph 5 rejected, irrelevant in view of the finding that Respondent's agents did not allow Petitioner's surveyor an opportunity to inspect the premises and the administrative fine was levied on that basis. Rulings on Respondent's Proposed Recommended Order 1. Respondent's position is set forth in a letter dated may 11, 1987. Inasmuch as Respondent's position is in the form of legal argument including their feelings, position on the credibility of witnesses and a concluding recommendation that the charges herein be dismissed, Respondent's Proposed Recommendation, while considered by the undersigned in preparation of the Recommended Order, is not ruled upon point by point in the Appendix herein. COPIES FURNISHED: Leonard T. Helfand Esquire Office of Licensure and Certification Department of Health and Rehabilitative Services 5190 Northwest 167th Street Miami, Florida 33014 Jacqueline H. Kidwell Administrator Fort Lauderdale Retirement Home 401 Southeast 12th Court Fort Lauderdale, Florida 33316
The Issue Whether Respondent, Hialeah Housing Authority (the Housing Authority), discriminated against Petitioner, Diana Varona, in violation of the Florida Fair Housing Act (the Act), and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Petitioner is a black Hispanic female. She is a former resident of an apartment complex administered by the Housing Authority. The Housing Authority is a public housing authority that administers the section 8 program within Miami-Dade County, Florida, pursuant to 42 U.S.C. section 1437f. Under the section 8 program, the Housing Authority uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased "unit" directly to the landlord. The section 8 program tenant pays the balance of the monthly rent to the landlord. As part of the Housing Authority’s program, each year section 8 participants must complete a personal declaration form. This form requires specific information about various aspects of the declarant and those family members authorized to participate in the program. The information includes the declarant’s financial circumstances and other facts. In or around January 2012, Petitioner moved into an apartment complex administered by the Housing Authority from out–of-state. Petitioner and her two minor children were the only authorized occupants for the apartment. Petitioner was diagnosed with ADHD (attention deficit hyperactivity disorder), bipolar disorder, and cancer in 2012 or 2013. She was scheduled for cancer surgery in July 2013, but had to cancel the surgery due to an unexpected addition to her family. On July 22, 2013, Petitioner requested to break her lease when she reported to the Housing Authority what she considered to be “life-threatening” conditions in her apartment, as well as the harassment of her children when they played outside. Petitioner had to go up the Housing Authority’s chain- of-command to get assistance; however, her apartment was inspected. As a result of the inspection, Petitioner’s landlord advised the Housing Authority that there were additional people living in Petitioner’s apartment. Based on the landlord’s observation of unauthorized persons living in the apartment, the Housing Authority instituted a fraud investigation. Detective Gutierrez is a Hialeah police officer assigned to the Housing Authority as an investigator. Detective Gutierrez conducts investigations into alleged violations of section 414.39, Florida Statutes (fraud). On August 13, 2013, Detective Gutierrez knocked on Petitioner’s front door. Petitioner opened the door and engaged in a conversation with the detective. While standing at Petitioner’s front door, Detective Gutierrez observed two adult males in Petitioner’s apartment. Jose Varona, Petitioner’s uncle, was released to Petitioner on July 24, 2013,4/ and was living in Petitioner’s apartment. Lazaro Gomez, Petitioner’s boyfriend, was also living in Petitioner’s apartment.5/ Once his conversation was completed, Detective Gutierrez returned to his office and reviewed Petitioner’s section 8 personal declaration form. On the form, Detective Gutierrez noted that Petitioner stated that she had never been arrested. Detective Gutierrez researched police records and determined that Petitioner had, in fact, been arrested in April 2013 for making a threat against an individual. Additionally, Detective Gutierrez noted that Petitioner’s stated income on the declaration form did not support the purchase of an automobile via a loan agreement. On August 13, 2013, Petitioner submitted to the Housing Authority an incomplete application for a live-in aide to assist her. The Housing Authority’s application is seven pages long and Petitioner failed to submit two pages that provided information from her treating physician. The Housing Authority’s process to determine whether to grant a live-in aide request involves a three step process: the verification that the requesting individual is disabled (meets the definition of a disabled person via a physician’s confirmation); that the individual needs the assistance of another person (which is also determined by a physician’s documentation); and that the live-in-aide qualifies as a live-in aide. On August 22, the Housing Authority denied Petitioner’s application for a live-in aide, but notified her that she could supplement her request with additional documentation, including the doctor’s verification. Petitioner did not supplement her application. Petitioner also claimed she filed a request to allow a family member, Mr. Varona, to move in with her family. Petitioner discussed with the Housing Authority personnel about adding her uncle to her contract. However, the Housing Authority never received a written request for Mr. Varona to be added to Petitioner’s voucher. It is the Housing Authority’s policy that it does not add adult family members to a voucher contract except via marriage or legal guardianship. Although Petitioner holds the power of attorney for Mr. Varona, she is not his legal guardian. Detective Gutierrez completed his investigation and filed his report with the Housing Authority. On August 26, the Housing Authority notified Petitioner that her participation in the section 8 Housing Choice Voucher Program was terminated, effective September 30. The basis given for Petitioner’s housing termination were listed as: engaging in criminal activity and failing to disclose it to the Housing Authority in her personal declaration in July 2013 (verification that Petitioner had been arrested on April 30, 2013); and allowing an unauthorized person to reside in the apartment. Petitioner timely requested an administrative hearing regarding the termination of her housing voucher. The hearing was originally scheduled for October 30, 2013; however, on October 28, Petitioner requested a continuance of the hearing based on her physical condition. The request was granted and the hearing was continued to December 3. In early November 2013, Petitioner asked the Housing Authority for a reasonable accommodation for an apartment with accessible features. The Housing Authority did not approve or deny this request, as it does not own the apartments, but offered to send her a list of accessible units known to the Housing Authority. Petitioner never contacted the Housing Authority for additional information. Petitioner was represented by an attorney at the Housing Authority’s December 3 hearing. As a result of this hearing, Petitioner’s termination of participation in the section 8 program was upheld. That said, Petitioner failed to present any credible evidence that other residents in the community were treated differently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Petitioner in its entirety. DONE AND ENTERED this 4th day of November, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2015.
The Issue Did Respondents, Richman Property Service, Inc. (Richman Property); Joe Lambert; Mira Verde Limited Partnership (Mira Verde); and RMS GP, LLC; discriminate against Petitioners, Sergio Trujillo-Gonzalez and Mariella Trujillo-Gonzalez, in the sale or rental of housing on account of a handicap? Did Respondents, Richman Property; Joe Lambert; Mira Verde; and RMS GP, LLC, discriminate against Petitioners, Sergio Trujillo-Gonzalez and Mariella Trujillo-Gonzalez, in the sale or rental of housing on account of national origin?
Findings Of Fact Mr. Trujillo-Gonzalez is handicapped. He routinely uses an electric wheelchair to move about. Due to his disability, he needs assistance and accommodation in moving about, including a ramp and "grab bars" in the bathroom. Richman Property and Mira Verde hold ownership interest in the Mira Verde apartments. Mr. Lambert is their manager for the property. There is no evidence establishing any relationship of RMS GP, LLC, with Mr. Lambert, Mira Verde Apartments, or the events described in this Order. From March 31, 2018, forward, Mr. Lambert, Richman Property, and Mira Verde were aware that Mr. Trujillo-Gonzalez was disabled and needed these accommodations. When asked about Mr. Trujillo-Gonzalez's patently obvious disability, Mr. Lambert prevaricated in his answer. Asked if Mr. Trujillo-Gonzalez used a wheel chair, Mr. Lambert replied, "I've seen him with an electric chair. I have seen him walking with a walker or a stick. I have seen him drive his Hummer. I have seen him walking without any assistance." (T-143) This evasiveness, along with the differences in demeanor of Mr. Lambert and Mr. Trujillo-Gonzalez, caused the undersigned to find Mr. Trujillo-Gonzalez more credible and persuasive when testimony of the two witnesses differed. In addition Mr. Trujillo-Gonzalez's willing admission of harmful facts enhanced his credibility. For these reasons, Mr. Trujillo-Gonzalez's testimony about requesting a modified apartment is accepted as more credible than Mr. Lambert's statements that Mr. Trujillo-Gonzalez never requested a modified apartment. Mr. Trujillo-Gonzalez is of Cuban descent. At all times material to this case, Mr. Lambert, Richman Property, and Mira Verde were aware of this. On March 31, 2018, Mr. and Mrs. Trujillo-Gonzalez entered into a Florida Tax Credit Lease Agreement with Richman Property and Mira Verde for a Mira Verde apartment. The apartment complex is part of a Low Income Housing Tax Credit Program. The maximum allowable apartment rent is based on the area's median income published annually by HUD. The majority of the apartments rent for 60 percent of the allowable rent. A minority of them rent to qualified tenants at 35 percent of the allowable rent. A goodly amount of evidence was directed to the Trujillo-Gonzalez's efforts to obtain a 35 percent apartment and Mira Verde's responses. There are no findings of fact on this subject because there is no evidence that difficulties or delays obtaining a lower rent apartment were due to Mr. Trujillo- Gonzalez's handicap or the Trujillo-Gonzalez's national origin. Mr. Trujillo-Gonzalez acknowledged there was no national origin discrimination in his testimony. He was asked, "Do you have any evidence with you here today that Mr. Lambert, the property manager, treats Cubans differently than other Hispanic tenants?" Mr. Trujillo-Gonzalez responded, "He mistreats everybody." (T-75) Mr. Trujillo-Gonzalez was asked, "And you don't have any evidence with you today to show residents who were non-Cubans were treated any differently, meaning you don't have a witness here today to show that they were – that non-Cubans were treated any differently than you?" He answered, "No. No." (T-75) The 14-page lease agreement between the Trujillo- Gonzalezes, Richman Property, and Mira Verde addresses a multitude of matters. They include security deposits, subletting, late payments, tenant utility responsibilities, the landlord's right to enter the premises without notice, tenant responsibility for clean carpets, waiver of landlord responsibility for criminal activity on the premises, pet prohibitions, waivers of claims for mold or mildew injury, tenant responsibility to report fire extinguisher malfunctions, prohibitions against all weapons including BB guns and paintball guns, restrictions on installation of satellite dishes, and curfews. The agreement does not contain a single word about when or how to request an accommodation for a handicap. On August 8, 2017, the tenant in Apartment 95 vacated the apartment. Apartment 95 had been modified to accommodate handicapped residents. Mr. Trujillo-Gonzalez asked Mr. Lambert to lease that apartment to him as an accommodation for his handicap. Mr. Lambert did not grant the request. The tenant who moved did not have a handicap. (T-21) There is no credible, persuasive evidence that allowing the Trujillo-Gonzalezes to rent that apartment was not reasonable. Instead of granting the request, Mr. Lambert gave Mr. Trujillo-Gonzalez a form to complete. The form only provided for requesting physical modifications to an apartment. The form also stated that the tenant understood and agreed that he was responsible for all costs for the modifications. A few days later Mr. Lambert gave Mr. Trujillo-Gonzalez an estimate for the installation of "four handicap bars." The cost was $795.00. The Trujillo-Gonzalezes could not afford this and told Mr. Lambert so. Since they could not afford to pay for the modifications, Mr. Trujillo-Gonzalez did not complete the form. Apartment 95 stood vacant for two months. (T-21) In November of 2017, Mr. Trujillo-Gonzalez asked Mr. Lambert to rent him apartment number 134. This apartment had been modified to accommodate tenants with handicaps. Mr. Lambert did not grant the request and indicated that the apartment was involved in a court proceeding. Yet Mr. Lambert rented the apartment to someone else in January 2018. There is no credible, persuasive evidence that allowing the Trujillo-Gonzalezes to rent that apartment was not reasonable. In late March or early April of 2018, Mr. Lambert told Mr. Trujillo-Gonzalez he would rent him the next vacant apartment modified to accommodate a handicap. He did not do this. In June of 2018, Mr. Trujillo-Gonzalez told Mr. Lambert that if Mr. Lambert would not rent him a modified apartment, then Mr. Trujillo-Gonzalez needed a shower, grab bars for the bath, and a wheelchair ramp for his apartment. On June 13, 2018, Mr. Lambert again provided the form described in Finding of Fact 13. Mr. and Mrs. Trujillo-Gonzalez filed their complaint with HUD on July 18, 2018. The complaint stated that June 11, 2018, was the most recent date of discrimination and that the discrimination was continuing. The complaint did not state that June 11, 2018, was the first or the only date of discrimination. In July and August of 2018, Mr. Trujillo-Gonzalez provided Mr. Lambert letters from Alvarez Gonzalez Gemayaret, M.D., of the University of Miami, Miller School of Medicine, stating that Mr. Trujillo-Gonzalez needed home modifications for his handicaps. The July 11, 2018, letter stated his needs included a ramp and a modified bathroom. The August 21, 2018, letter provided more detail. It stated: Mr. Trujillo is an established patient of the UHealth Institute for Advanced Pain Management and he is being treated for his chronic Right sided pain in his RU and RLE subsequent to subcortical ischemic stroke. Mr. Trujillo requires electric wheelchair to assist his mobility which is impaired because of the hemiplegia and RLE pain. Patient also has certain needs related to his stroke and disability and will greatly benefit from certain home improvements such as a ramp at the entrance to his house, as well as necessary rails in his house and bathroom, which will facilitate his daily activities. On August 7, 2018, Mr. Lambert contacted the Trujillo-Gonzalezes about completing an application for the transfer to a 35 percent lease that the Trujillo-Gonzalezes had been seeking. Mrs. Trujillo-Gonzalez refused to speak to him. Mr. Trujillo-Gonzalez stated that he would not participate further in the process until the Commission had completed its complaint review. (R. Ex. 16). Mr. Trujillo-Gonzalez testified: "I told him that I was going to wait for the commission investigation to finish. See, because that was the advice that they gave me, to wait for the investigation to be concluded." (T-72) Nonetheless, Mr. Trujillo-Gonzalez continued to communicate about obtaining a modified apartment. Mr. Lambert says that because of this exchange, he did not communicate further with the Trujillo-Gonzalezes about changing apartments to obtain a 35 percent lease or to obtain a modified apartment. This was not reasonable in light of Mr. Trujillo-Gonzalez's subsequent communications about obtaining a modified apartment. The tenant in Apartment 106 vacated the apartment on October 31, 2018. Apartment 106 was modified to accommodate handicapped tenants. Mr. Trujillo-Gonzalez asked Mr. Lambert to lease him that apartment. Mr. Lambert did not grant the request. (T-39-41). There is no credible, persuasive evidence that allowing the Trujillo-Gonzalezes to rent that apartment was not reasonable. November 30, 2018, Apartment 85 became available. It was modified to accommodate handicapped residents. Mr. Lambert did not offer it to the Trujillo-Gonzalezes. Instead, he rented it to another family. There is no credible, persuasive evidence that allowing the Trujillo-Gonzalezes to rent that apartment was not reasonable. Apartment 20 is modified to accommodate handicapped residents. The tenants vacated the apartment on December 31, 2018. Mr. Lambert did not offer it to the Trujillo-Gonzalezes. There is no credible, persuasive evidence that allowing the Trujillo-Gonzalezes to rent that apartment was not reasonable. Renting an already modified apartment to Mr. and Mrs. Trujillo-Gonzalez was a reasonable, cost-free accommodation for Mr. Trujillo-Gonzalez's handicap. Starting August 8, 2017, the Trujillo-Gonzalezes repeatedly requested this accommodation. Mr. Lambert, Richman Property, and Mira Verde never granted this reasonable request. Renting Mr. and Mrs. Trujillo-Gonzalez an apartment with bathroom grab bars and a wheel chair ramp within 30 days of the effective date of this order is reasonable affirmative relief providing a reasonable accommodation for Mr. Trujillo-Gonzalez's handicap. Modifying the apartment by installing grab bars in all bathrooms and installing a wheelchair ramp within 30 days of the effective date of this order is alternative, reasonable affirmative relief providing a reasonable accommodation for Mr. Trujillo-Gonzalez's handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order that: Dismisses the Petition against Respondent, RMS GP, LLC; Prohibits Respondents, Richman Property Services, Inc.; Joe Lambert; and Mira Verde Limited Partnership from refusing to provided reasonable accommodations to handicapped tenants. Requires that within 30 days of the Commission's order becoming final that Respondents, Richman Property Services, Inc.; Joe Lambert; and Mira Verde Limited Partnership; either: Lease the Trujillo-Gonzalezes an apartment with existing modifications that at least include bathroom grab bars and a wheel chair ramp, or Modify the Trujillo-Gonzalez's existing apartment, at Respondents' expense, by installing at least grab bars in each bathroom and a wheelchair ramp. DONE AND ENTERED this 15th day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 15th day of January, 2020.
Findings Of Fact At all times relevant hereto Bayview Superior Retirement Home (Bayview or Respondent) was licensed by Petitioner as an Adult Congregate Living Facility. At the time of this hearing there were ten residents at Bayview. These residents ranged in age from about 60 upward. Several of these residents are senile or partly so; and many are incapable of taking care of their personal needs such as taking their medication, bathing and dressing themselves, visiting their doctors' offices, or going out of Bayview unescorted. Jenny D. is a resident at Bayview. She easily becomes disoriented and has a propensity for wandering to other residents' rooms and for leaving the facility and walking downtown. On several occasions Jenny D. was picked up by the police walking on the street in heavy traffic and was unable to give her name or where she lived. To deter this practice, and at the prodding of Petitioner, Bayview installed a door alarm system to alert the attendants on duty of a resident's attempt to slip out for any reason. On only one occasion since the installation of this alarm was Jenny D. successful in slipping away and having to be returned by the police or be picked up by someone from Bayview and brought back. On July 6, 1983, approximately one week following one of Jenny D.'s sojourns from Bayview, Rebecca Falzone, a licensed specialist for Petitioner, visited Bayview to inspect the home and records. A review of Jenny D.'s record did not reveal an incident report on Jenny D.'s escapade the previous week. At the time of this visit the Administrator, Gordon Groundwater, was not present. Groundwater had prepared the incident report but had removed the handwritten copy from the file to be typed. A copy of the incident report was submitted as Exhibit 8. On or about June 15, 1983, after going to bed, Jenny D. got out of bed and wandered to other residents' rooms until she was taken back to her bed by an attendant. Jenny D. resisted the efforts to put her into bed and she had to be restrained to get her back to bed. This consisted first of holding Jenny D.'s arms then placing her in a jacket-type restraint to keep her in bed until she settled down. During this restraining process, Jenny D. suffered bruises on her arms (Exhibit 2). Terry Orme worked as a handyman at Bayview from July to mid-September, 1983, at which time he was fired. Orme occupied an apartment owned by Bayview as part of his compensation for his services. Upon being terminated, he was told to vacate the apartment, but did not leave until evicted by court order in October. After his termination, Orme reported to Respondent an incident involving one resident who had nearly choked on a nylon hose put on her hands and arms to deter the resident from sucking her fingers. In sucking her fingers through the hose, she sucked part of the hose down her throat. Orme also testified that he put chains on doors to keep residents from wandering into other residents' rooms. On one occasion during a visit to Bayview by Frederick Timmerman, M.D., who serves on the Ombudsman Council with Bayview as his responsibility, no menu was posted. Dr. Timmerman attempted to talk to the residents at Bayview but got no intelligent answers from any of them. On another occasion during a visit to Bayview by one of Petitioner's employees, the posted menu had not been changed to correspond with the meal being served. Gail Silva worked at Bayview on Saturday, August 27, 1983, from 7:00 a.m. until 4:36 p.m. She was hired by Mrs. Siess and at 4:36 p.m. when Mrs. Siess returned to Bayview Mrs. Silva quit, quite angry because she had told Mrs. Siess she needed to leave at 3:00 p.m. to take care of her young children, and Mrs. Siess was not present to relieve her at that time. Upon reporting for work that Saturday morning, Mrs. Silva was taken on rounds by Mrs. Siess. They went to a room occupied by Hanna, an incontinent resident who was taken to the bathroom and hosed down by Mrs. Siess. Liquid detergent was used by Mrs. Siess to wash the resident's genital area. No full bath was administered. Later that day Mrs. Silva bathed another resident who had diarrhea and was wearing Pampers diapers and loose underwear. A bathing schedule was posted but Mrs. Silva did not know if anyone was scheduled for a bath the one day she worked. Mrs. Silva also observed Mrs. Siess give medications to some residents. For some, she put the pill in a bowl and provided them with water to wash down the pill. For one resident, Mrs. Siess put the medication in some pudding which was given to the resident. Mrs. Silva also testified that one resident had an infected foot, on which Silva cut out an ingrown toenail; that she cut the fingernails of several residents; that she assembled them in the afternoon to discuss recreation with them and several requested music and dancing; that no recreation activities such as radio, group games, etc., were provided; that the t.v. provided was a pastime and not an activity; and that Mrs. Siess asked her if she knew how to change a catheter. Mrs. Silva's medical education consists of a course in home health training which she took from a nursing agency, but she has done volunteer health work in the past. She knew that only a licensed nurse is authorized to change a catheter and was offended at being asked if she knew how to change one. During an evening visit to Bayview by Mrs. Falzone, residents told Mrs. Falzone around 9:00 p.m. that they were hungry. The evening meal had been served at 5:00 p.m. and breakfast was scheduled at 8:00 a.m. the next morning, more than 14 hours after the dinner meal. The medicine chest in which medications are stored is a metal box which opens from the top. There is no handle on the door (top) of this chest, and on several occasions when inspectors were at Bayview the chest was not locked. The chest was kept in the kitchen, to which residents were barred, and either a knife or screwdriver was needed to open the unlocked chest. Even with the key, it is difficult to open the chest without applying the levering effect of a knife or screwdriver to lift the door of the chest on its hinges. All witnesses agreed that few, if any, residents had the dexterity to open the unlocked medicine chest; that the residents did not have access to the chest located in the kitchen; and that a large percentage of these residents could not take their medications unaided, but needed to be given their proper medications by one dispensing the medications to them. Considerable evidence was submitted that many of the residents at Bayview were unable to safely leave the facility without close supervision; and that Jenny D. "walked away" on numerous occasions before the door alarm system was installed, and one time after it was installed. Respondent is also charged with having doors locked and wired shut to keep residents from surreptitiously leaving the facility and thereby subjecting themselves to danger. The evidence in this regard was contradictory, with one witness testifying the one day she worked at the facility one outside door was wired shut, while the Administrator of the facility categorically denied any door was so wired. Since neither of these witnesses' testimony is deemed more credible than the other, the evidence on this charge is in equipoise. Terry Orme also testified that on one occasion he, at the request of Mrs. Siess, signed a name to a contract as sponsor, thereby forging the signature. A copy of this contract was not produced and no other evidence regarding this incident was presented. However, Orme's testimony in this regard was not contradicted. Residents of Bayview Superior Retirement Home are happy at the facility and their relatives are satisfied with the facility and the care given to these residents. Several relatives of residents at Bayview phoned and wrote to the Ombudsman responsible for this facility complaining about having to move their relatives from this facility.
The Issue The issues are whether Respondent, Sarasota Housing Authority (the Housing Authority), discriminated against Petitioner, Estella Smith (Ms. Smith), based on her disability in violation of the Florida Fair Housing Act (the Florida FHA), and, if so, the relief to which Petitioner is entitled.
Findings Of Fact Ms. Smith, a 52-year-old female, testified she participated in the Section 8 program for over ten years and never had any problems until she moved to Sarasota. Ms. Smith moved into the Sarasota rental unit in October 2009. The Housing Authority is a public housing authority that administers the Section 8 program, within Sarasota County, Florida, pursuant to 42 U.S.C. section 1437f. Under the Section 8 program, the Housing Authority uses funds, supplied by HUD, to pay a percentage of the monthly rent on a leased "unit" directly to the landlord. The Section 8 program tenant pays the balance of the monthly rent to the landlord. Ms. Smith executed a residential lease for a HUD- approved unit on September 5, 2009, to begin a one-year rental. Ms. Smith agreed to abide by all the terms and conditions of the residential lease, including the timely payment of rent and the number of occupants (one adult and one child) in the rental unit without the written consent of the landlord. On or about October 1, 2009, Ms. Smith moved from Tampa, Florida, to Sarasota, Florida, and resided at the rental unit, 3047 East Tamiami Circle, Apartment A, Sarasota, Florida. On September 8, 2009, Ms. Smith executed the Housing Authority's personal declaration/tenant information form. Under part three of this form labeled: "Family Members (including Head of Household) currently residing in unit," there were blank lines to be completed by Ms. Smith. The following information was requested: name; date of birth; social security number; disabled; Hispanic; race; and relationship. Ms. Smith (or someone at her direction) completed the form including information about herself and her sole dependant. Under the disabled heading on the line for Ms. Smith, the word "Pending" is written. Additionally, in part five of this form labeled: "Expenses," was a question, "Are you or your spouse age 62 or older and/or disabled?" Ms. Smith (or someone on her behalf) checked the box before "no" after this specific question. Ms. Smith testified she suffered a stroke sometime in 2009 and was physically affected by it. However, she was unable to reference the specific time frame except for prior to her "porting" back to Sarasota. Ms. Smith claimed to use both a walker and a wheelchair at various times since suffering the effects of the stroke. Further, she later testified that, when she was in her rental unit, the doorways were narrow but she could maneuver in it. During her initial interview with the Housing Authority in September 2009, Ms. Smith stated she was using a walker that day and never told anyone at the Housing Authority that she was disabled. Ms. Smith admitted she withheld the rent from the landlord. However, she claimed her refusal to pay the rent was based on the lack of heat in the rental unit and the suspension of her laundry room privileges. Ms. Smith further testified Bertha L. Pete (Ms. Pete) provided Ms. Smith with assistance in her daily living activities and started living in Ms. Smith's rental unit after Christmas or in late December 2009. A copy of Ms. Pete's Florida driver's license, which reflects Ms. Smith's rental unit address as Ms. Pete's residence as of January 27, 2010, was admitted into evidence. On February 10, 2010, Ms. Smith executed a request for a live-in aide with the Housing Authority. Ms. Smith named Ms. Pete to be her proposed live-in aide. The date stamp for the Housing Authority reflects that the request was received by the Housing Authority on February 17, 2010. Any proposed live- in aide has to meet the requirements imposed by the Housing Authority and HUD. Ms. Pete did not meet the requirements. Additionally, on February 17, 2010, Ms. Smith executed a verification of live-in aide form to be completed by her physician and returned to the Housing Authority. That completed form was never returned to the Housing Authority. Both parties produced an executed medical doctor's prescription with Ms. Smith's name as the patient. The hand-written notation on the prescription is "patient needs in home aid." This verbiage is not sufficient nor equivalent to the requirements listed on the verification form for a "live-in aide." The Housing Authority did not know that Ms. Smith needed a live-in aide when she completed her application in September 2009. Although Ms. Smith utilized a walker at the time of her initial interview with the Housing Authority, the Housing Authority did not know she was disabled at that time. It is not the Housing Authority's practice to inquire of someone's physical status, as that could be perceived as a discriminatory question. Sharla Frantz (Ms. Frantz), director of human resources for the Housing Authority, is the hearing officer for the Section 8 program. Ms. Frantz testified as to the process utilized in the Housing Authority's Section 8 program. Ms. Frantz testified that Ms. Smith made a request for assistance on January 27, 2010, regarding the lack of heat in her rental unit. The Housing Authority caused an inspection to be made that same day, and a deficiency was noted. The repair was completed, and the rental unit passed a follow-up inspection on February 28, 2010. However, at the time of her complaint, Ms. Smith did not discuss any other conditions or circumstances regarding the rental unit, nor was any request for a live-in aide made. On or about February 11, 2010, the Housing Authority was made aware of a possible unauthorized person living at Ms. Smith's rental unit, as well as her failure to timely pay rent. Several days later, the Housing Authority issued a letter to Ms. Smith detailing the reasons for her termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith requested a hearing from the Housing Authority, which was held on March 2, 2010. As a result of the hearing, the Housing Authority issued a letter detailing the basis for Ms. Smith's termination from the Section 8 program: an unauthorized person living in the rental unit and her failure to pay rent. Ms. Smith was afforded time to prove that the rental amount was paid in full and that Ms. Pete did not live with her. Ms. Frantz testified that at the Housing Authority hearing, Ms. Smith wrote a check for the past due rental amount. However, Ms. Frantz never received proof that the payment was actually made to the landlord. Ms. Smith testified the landlord wanted the payment in cash; however, Ms. Smith did not feel comfortable paying the rent in cash, as it did not provide her with a receipt. The rent was never paid. After waiting several days, the Housing Authority issued another letter to Ms. Smith stating that Ms. Smith was terminated from the Section 8 program for two program violations. It further described that a lease agreement, brought in to the Housing Authority, did not substantiate her claim that an unauthorized person (Ms. Pete) was not living in Ms. Smith's rental unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Estella Smith in its entirety. DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2011.
