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 The issue in this case is whether sanctions, including attorney's fees and costs, should be assessed against Respondent, the Lake Region Audubon Society, Inc. (LRAS), and awarded to Petitioner, Spanish Oaks of Central Florida, LLC (Spanish Oaks), under Sections 57.105, 120.569(2)(e), and 120.595(1), Florida Statutes,1 after LRAS unsuccessfully challenged the Southwest Florida Water Management District's (SWFWMD's) issuance of Environmental Resource Permit (ERP) Number 44025789.001 to Spanish Oaks.
Findings Of Fact LRAS' Amended Petition SWFWMD issued ERP 44025789.001 to Spanish Oaks on April 27, 2004. On May 11, 2005, Donna Stark, a member of LRAS, made a presentation to the LRAS board of directors asserting that Spanish Oaks was using one-to-three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and was polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP. After the presentation, the LRAS board decided that its five-member Steering Committee--which took the place of a president, rotated responsibility for conducting board meetings, and functioned like an executive committee--would continue to investigate and make a decision as to what role LRAS should have in the future. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft a Petition for Administrative Proceeding (LRAS Petition), which was signed by four members of the Steering Committee between May 31 and June 2, 2005, and was filed with SWFWMD on June 6, 2005. Because the timeliness of the LRAS Petition could not be ascertained from the allegations, SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, later identified as Donna Stark, on May 10, 2005. The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair on July 6, 2005, and filed with SWFWMD, which determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition and referred it to DOAH, where it was given DOAH case number 05-2606 and scheduled for a final hearing on September 22-23, 2005. The Amended Petition alleged in ¶5: The following evidence of the karst nature of the site is submitted: On February 3, 2005, in a meeting of Donna Stark, a member of [LRAS], with Sherry Windsor and biologist Jeff Whealton, the District personnel called in their geologist Tom Jackson for his professional opinion on this issue. Based on his training in karst geology and years of field observation at this site (prior to current ownership), Mr. Jackson referred to this structure as a fracture (an elongate sinkhole). Another individual who has graduate training in karst topography and who has studied this site for several years also has informed [LRAS] that this sinkhole has a vertical pipe and was an active "surface-to- ground water system" (Affidavit of Charles Cook - Ex. 8) Petitioners have consulted professionals who specialize in geological and geotechnical engineering and who are well recognized for their work in the state. Based on the available information they have expressed concern and have indicated that a thorough and detailed investigation consisting of geophysical and geotechnical methods should be performed to address the concerns of this Petition. Donna Stark, a member of [LRAS], observed first-hand the sinkhole in the southeast portion of Spanish Oaks collapsed during construction of the retention pond (perhaps due to heavy equipment or due to heavy rains of the fall 2004 hurricanes). Refer to Affidavit - Ex. 9. Paragraph 5. iv) of the Amended Petition continued and asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site [later identified as George Wilt] that the retention ponds were 30 feet deep.” It also asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (later identified as Timothy King), observed a "very large cone- shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.” It also asserted: "On February 4, 2005, Donna Stark went to the District office in Bartow to discuss this issue with the engineer in charge of the project, Sherry Windsor, biologist Jeff Whealton and geologist Tom Jackson. The engineering worksheet in the file shows a required depth of 6.5 feet from pond bottom elevation (136.5') to top of bank elevation (143.0')[.] It was suggested by one of the District scientists that the retention pond had collapsed during construction to create the observed depth. This is the only logical explanation in the opinion of Petitioner since [that would be a violation and grounds for revocation, as well very expensive, and would serve no useful purpose]." It also alleged that, "[w]hen Donna Stark returned on February 10, 2005, the area had been filled with sand to the required elevation and was flat-bottomed." On the clay core issue, paragraph 5. iv) of the Amended Petition alleged: "When Donna Stark spoke to William Hartmann, [SWFWMD] Surface Waters Regulation Manager, on April 21, 2005 he indicated that he had received no phone call from Permittee and that District staff had not inspected the clay core construction. At that time, the 'As-Built' inspection had been requested." The "Concise Statement of Ultimate Facts Alleged" included the statement: "Permittee also did not inform the District, as required, when (and if) a clay core was constructed in the berms. Serious impacts on adjacent property may be expected if the clay cores were not properly constructed." The Amended Petition in ¶6 alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction; and Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures. LRAS’ Amended Petition asserted in ¶7. ii) that the Spanish Oaks development violated Florida Administrative Code Rule 62-522.300(1) and (3),2 which provided in pertinent part: (1) . . . [N]o installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. * * * (3) Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. It was alleged that this violation required reversal or modification of the proposed agency action. It was later revealed that the professionals referred to in paragraph 5. iii) of the Amended Petition included three engineers, one named Larry Madrid, and "many, many professionals of different government agencies." The attached "affidavit" (actually, an unsworn statement) of Charles Cook set out the basis of his knowledge of karst geology in general, and the Spanish Oaks site in particular, and his "conclusion that three depressional features existed on the subject parcel and I personally explored a subterranian [sic] void in a depressional sinkhole located in the southern part of the parcel in question, and believe it was an active recharge conduit connecting with subsurface aquifers." The attached "affidavit" (actually, an unsworn statement) of Donna Stark included the statement: "I hereby certify that the information submitted to [LRAS] concerning Spanish Oaks is true and accurate to the best of my knowledge." It also repeated some of the allegations in the Amended Petition and gave her "qualifying credentials for the above observations and interpretations" including: Ph.D. in Ecology from the University of Minnesota - 1971 with thesis title "Paleolimnology of Elk Lake, Itasca State Park, Northwestern Minnesota" Post-doctoral Research at Limnological Research Center, University of Minnesota 1972-1973 - published 1976 Science teaching at Southeastern College in Lakeland 1973-1974. Full Professor. The Amended Petition also was buttressed with citations cited to several scientific publications about karst geology, sinkholes, and stormwater retention ponds. It is clear that LRAS relied heavily on Donna Stark and her educational background and scientific knowledge, her alleged personal knowledge, and her alleged discussions with various professionals, including District personnel. Starks actually drafted almost all of the Petition and Amended Petition for the LRAS Steering Committee. Proceedings in Case 05-2606 LRAS was represented in Case 05-2606 by Paul Anderson, a member of LRAS' Steering Committee. By letter filed July 27, 2005, LRAS requested that the ALJ enter an order requiring a halt to all work on Spanish Oaks. On August 1, 2005, Spanish Oaks filed a Motion to Dismiss, or in the Alternative, Motion to Strike. The grounds were that there was no jurisdiction to enforce compliance with permit conditions, which the prayer for relief in the Amended Petition seemed to seek, and that allegations of non-compliance with ERP conditions should be stricken as irrelevant to issuance of the ERP. Discovery was initiated in Case 05-2606. In addition, in response to concerns expressed in the Amended Petition, Spanish Oaks hired Sonny Gulati, a professional engineer and expert in the field, to undertake a sinkhole investigation on the Spanish Oaks property using ground penetrating radar (GPR) and standard penetration testing (SPT). Mr. Gulati concluded that there were no active sinkholes on the site and prepared a report to that effect. Spanish Oaks presented the report to LRAS in August 2005; Spanish Oaks also served LRAS with a Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes (Motion), and informed LRAS that Spanish Oaks would file the Motion within 21 days if LRAS did not drop its opposition to the ERP. The Motion specifically alleged the impropriety of the sinkhole and clay core issues raised in the Amended Petition but did not mention the erosion control issue. LRAS' first attempt at discovery was defective in that its interrogatories and requests for production were directed to witness Tom Jackson instead of SWFWMD. SWFWMD moved for a protective order, which was granted on August 17, 2005. LRAS promptly served interrogatories and requests for production on SWFWMD and Spanish Oaks. Also on August 17, 2005, an Order was entered explaining to LRAS the procedure for obtaining qualified non- attorney representation, and an Order on Motion to Dismiss or Strike and Request for Stop-Work Order was entered. The latter Order recognized that the peculiar procedural posture of the case (namely, that LRAS' Amended Petition was timely even though it challenged an ERP purportedly issued in April 2004) contributed to the incorrect wording of LRAS' prayer for relief; placed a gloss on LRAS' prayer for relief as seeking denial, not revocation, of the ERP; and declined to strike allegations of non-compliance with the ERP, as they could be relevant to LRAS' challenge to the provision of reasonable assurance by Spanish Oaks. The stop-work request was denied for lack of jurisdiction to give injunctive relief in an enforcement matter. (Unbeknownst to the ALJ, on July 22, 2005, SWFWMD approved the transfer of the ERP to the operation phase, with responsibility for future operation and maintenance transferred to the Spanish Oaks of Central Florida Homeowners Association (HOA), notwithstanding the requirement of Section 120.569(2)(a), Florida Statutes, that SWFWMD take no further action on the ERP except as a party litigant.) By letter dated August 26, 2005, LRAS requested that Spanish Oaks allow its retained engineer to enter, inspect, and conduct investigations on the Spanish Oaks site. Spanish Oaks denied this request. At the end of August and in early September 2005, the parties exchanged hearing exhibits and witness lists in accordance with the Order of Pre-Hearing Instructions. When LRAS followed the procedure for obtaining approval of qualified, non-attorney representation by Mr. Anderson, Spanish Oaks objected to Mr. Anderson's qualifications. On September 7, 2005, an Order Authorizing Qualified Representation was entered. It recognized the short- comings in Mr. Anderson's qualifications, and the possibility that representation by a Florida attorney would benefit LRAS and make the proceeding fairer to all (including LRAS). Also on September 7, 2005, Spanish Oaks filed its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. Cf. Finding 14, supra. On September 12, 2005, LRAS filed a request for permission to add Mr. Madrid to its witness list. On September 14, 2005, an Order Denying, without Prejudice, Request to Add Witness was entered because the request did not indicate whether LRAS had conferred with the other parties. On September 15, 2005, Spanish Oaks filed a Response in Opposition to Request for Entry upon Land for Inspection and Other Purposes and Motion for Protective Order. Spanish Oaks asserted that it no longer had control over the retention ponds, which were controlled by the HOA, and that home construction was in progress, making timing and coordination of the request problematic, if not impossible. Spanish Oaks also asserted that, if the inspections were allowed, multiple issues would have to be addressed, including potential liability and insurance issues, and that more detail would be required to ensure that LRAS' inspection, which could include drilling sample borings in the retention ponds, would not compromise the integrity of the stormwater system and retention ponds. By letter dated September 19, 2005, LRAS requested that Spanish Oaks agree to the addition of Mr. Madrid as a witness. By another letter dated September 19, 2005, LRAS requested that Spanish Oaks produce back-up documentation supporting Mr. Gulati's sinkhole investigation report, including site maps of GPR test locations, the uninterpreted GPR raw data, the GPR strip charts, as well as the actual SPT soil borings, because LRAS' retained expert geologist, Marc Hurst, had advised LRAS that the information was necessary for him to determine the reliability of Mr. Gulati's report and conclusions. A telephone hearing was held on September 20, 2005, on LRAS' requests to add Mr. Madrid to its witness list, for Mr. Hurst to be allowed entry on the Spanish Oaks site to inspect and investigate, and for Mr. Hurst to be allowed to review the back-up documentation and SPT borings supporting Mr. Gulati's report. No party ever requested a continuance of the final hearing (set to begin in just two days), and the request to add Mr. Madrid as a witness was denied as too late. It is not known what Mr. Madrid's testimony would have been. LRAS dropped its request for entry on land in the face of the opposing arguments from Spanish Oaks. As to the back-up documentation supporting Mr. Gulati's report, Mr. Gulati was required to bring the documents to the final hearing but Spanish Oaks was not required to produce the SPT borings, which were represented to be numerous and a large quantity of soil. Immediately before the start of the final hearing, Spanish Oaks filed both a Motion in Limine, which was denied, and a Motion for Summary Recommended Order. Ruling on the pending motions was deferred. Spanish Oaks' Motion for Summary Recommended Order Motion was based on arguments that LRAS' filing of the Amended Petition was "ultra vires" and that LRAS had no standing. These issues (which ultimately were resolved in favor of LRAS and against Spanish Oaks) were the focus of much of the effort of Spanish Oaks in discovery and in the final hearing, as reflected in the Recommended Order in the case. Recommended and Final Orders in Case 05-2606 After the final hearing, Spanish Oaks filed a proposed recommended order suggesting that jurisdiction to rule on its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, should be retained. A Recommended Order that ERP 44025789.001 be issued to Spanish Oaks was entered in Case 05-2606 on November 10, 2005. Jurisdiction was retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. On November 30, 2006, SWFWMD entered a Final Order adopting the Recommended Order in its entirety and issuing ERP 44025789.001 to Spanish Oaks. As to the ERP criteria, the Recommended Order found in pertinent part: Alleged Sinkholes * * * Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13 EN. 11 - Notably, Mr. Hurst has only participated in four sinkhole investigations and reviewed the reports of approximately six other such investigations, while Mr. Gulati has conducted between 700 and 800 during the past ten years. EN. 12 - The anecdotal testimony of Charles Cook and Tom Jackson regarding their observations of depressions and “cracks” at the site several years earlier did not support a finding that there is an active sinkhole. Mr. Jackson, a geologist for SWFWMD, was not willing to draw such a conclusion. EN. 13 - Mr. Gulati acknowledged that, in areas where the aquifer is under artesian pressure, an active sinkhole will hold water. However, that aquifer condition does not exist in the vicinity of Spanish Oaks. T. 358. The only suggestion of any sinkhole- related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement. Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse. Stark may have been confused by the amount of excavated material being stored on the ground surface around the pond. 43,906 cubic yards of dirt was excavated from Pond A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation. Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.” Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite. Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination. Construction of Berms LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14 EN. 14 - The Amended Petition actually alleged that this was a permit condition violation requiring revocation of the ERP. However, it was ruled prehearing that "the Petitioner's request for revocation actually is a request for a final order denying Spanish Oaks' application for a permit" and that "the allegations of non- compliance with permit conditions should not be stricken but instead should be considered only as they might relate to Spanish Oaks' provision of required reasonable assurances for issuance of a permit." See Order on Motion to Dismiss or Strike and Request for Stop-Work Order, entered August 17, 2005. The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water. EN. 15 - Pond B is centrally located in the Spanish Oaks’ interior. The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity." LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required. To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP. SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters. SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP. Endnote 3 at Finding of Fact 4 in the Recommended Order in Case 05-2606 stated: "The Amended Petition also alleged that Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures, but no evidence was presented by LRAS on this issue, which appears to have been abandoned." As to the ERP criteria, the Recommended Order concluded in pertinent part: The applicable criteria for the issuance of a standard general ERP for the Spanish Oaks project are set forth in Rules 40D-4.301 and 40D-4.302, as well as SWFWMD's Basis of Review (BOR), which is made applicable pursuant to Rule 40D-4.301(3). LRAS’ challenge to the ERP alleges the presence of a sinkhole or a sinkhole collapse in one or more of the retention ponds for the Spanish Oaks subdivision, and the impact that such alleged sinkhole or sinkhole collapse would have on conditions for issuance relating to groundwater quality. LRAS’ case reflects a basic misperception of the permitting criteria applicable to surface water management system retention ponds. Section 6.4.1.b. of the BOR, which establishes specific design criteria for retention areas, requires as follows: Depth – The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District, where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer. As found, the Spanish Oaks retention ponds comply with this criterion. LRAS also contends that the Spanish Oaks retention ponds violate Rule 62- 522.300, a rule which, in LRAS’ view, prohibits the location of a stormwater retention pond in or over a sinkhole. LRAS’ reading of the rule is incorrect. Rule 62- 522.300(1), with certain exceptions not relevant here, provides that no installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. The purpose of a zone of discharge is to provide a mixing zone “extending to the base of the designated aquifer or aquifers, within which an opportunity for the treatment, mixture or dispersion of wastes into receiving ground water is afforded.” Fla. Admin. Code R. 62-520.200(23). No evidence introduced at hearing suggests that the surface water runoff that infiltrates through the bottom surfaces of the Spanish Oaks retention ponds, and then travels approximately 70 feet through soil before reaching the Floridan aquifer, will exceed applicable ground water criteria when it reaches the aquifer. For that reason, the Spanish Oaks retention ponds do not need a zone of discharge. Rule 62-522.300(3) provides that Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. (Emphasis supplied). Classes F-1, G-1, and G-II groundwaters are designated for potable use and are located within an aquifer. Fla. Admin. Code R. 62-520.410. “Aquifer” is specifically defined as “a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water." Fla. Admin. Code R. 62- 520.200(2). Unless the alleged sinkholes allowed "direct contact" with the Floridan Aquifer, a zone of discharge would be permitted, assuming one were needed. No evidence introduced at hearing suggests that discharges from the retention ponds will come into direct contact with Class G-1, Class F-1, or Class G-II groundwaters. Instead, the discharges from the Spanish Oaks ponds only indirectly contact a drinking water aquifer, after infiltrating through tens of feet of separating soil layers. LRAS has not identified any applicable rule that prohibits the location of a retention pond in or over a relic sinkhole. Indeed, the record establishes that the presence of a sinkhole in or under a retention pond is problematic only if sinkhole activity affects the approved design of the retention pond. See Findings 47 and 49, supra. LRAS’s assertion of a sinkhole collapse at Spanish Oaks during the time frame alleged is contrary to the greater weight of the evidence, which established that the ponds have been constructed and are operating as designed and that there is no active sinkhole on the Spanish Oaks site that adversely affects the quality of receiving waters such that state water quality standards would be violated, or that otherwise affects Spanish Oaks’ ability to provide reasonable assurance of meeting applicable permitting conditions. LRAS offered no evidence to establish that water percolating through the Spanish Oaks retention ponds will come into direct contact with a drinking water aquifer or that a state water quality standard would be violated by the project. The greater weight of the evidence established that the Spanish Oaks retention ponds comply with the applicable construction requirement as stated in BOR Section 6.4.1.b. There is more than sufficient soil underlying the Spanish Oaks retention ponds to assure compliance with this requirement. As found, Spanish Oaks' failure to notify Mr. Hartmann before beginning construction of the clay core berm does not prevent Spanish Oaks from providing reasonable assurance that permit criteria will be met. As a result, Spanish Oaks has met its burden of proof and persuasion that all conditions for issuance of the permit have been satisfied and that it is entitled to the requested ERP. As suggested in the proposed recommended order filed by Spanish Oaks in Case 05-2606, the Recommended Order retained jurisdiction to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. Spanish Oaks "renewed" the motion by filing its Petition in this case. SWFWMD's Final Order adopted the Recommended Order in its entirety. Petition in Case 05-4644F The Petition in this case asserts essentially that LRAS had no competent substantial evidence: that there was an active sinkhole under the retention ponds on the Spanish Oaks site; that the required clay core was not installed; or that erosion control measures were not used. As to the sinkhole allegations, Spanish Oaks asserts that, even if there were a reasonable basis for filing the Amended Petition in Case 05- 2606, it should have been withdrawn upon receipt of Mr. Gulati's report and Spanish Oaks' Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. As indicated in the findings of fact and conclusions of law in Case 05-2606, Donna Stark and Charles Cook did not testify precisely as LRAS had been led to believe from their "affidavits" in the Amended Petition that they would. Likewise, the testimony of Timothy King and George Wilt was not supportive of Donna Stark's "affidavit" as to a sinkhole collapse during construction on the site, or her testimony as to Mr. Wilt's statements to her. The testimony of Tom Jackson and Charles Cook also did not completely support Donna Stark's "affidavit" as to the existence of sinkholes on the site. But while the use of "discovery" to establish the testimony of those individuals before the hearing certainly might have alerted LRAS to problems with the "affidavits" it was relying on, it was not incumbent on LRAS to undertake such "discovery" in order to avoid sanctions. It is not found that LRAS's prosecution of its Amended Petition in reliance on those "affidavits" was frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS' prosecution of the Amended Petition after receiving Mr. Gulati's report and notice of Spanish Oaks' intention to file its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, also was not proved to be frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS attempted to follow up on Mr. Gulati's report so as to enable its retained expert, Mr. Hurst, to verify whether it should be accepted as conclusive proof of the hydrogeology of the site, and perhaps assure LRAS that its Amended Petition could be withdrawn, but LRAS' attempts were unsuccessful. As a result, LRAS was left to presentation of Mr. Hurst's testimony based on the information he had. Mr. Hurst testified to the likely existence of at least three sinkholes at the site. He based this testimony on his knowledge of the area's stratigraphy, aerial photographs and topographical maps showing unexplained surface depressions, and evidence reported in Mr. Gulati's report. In addition, there are two documented sinkholes in the "immediate vicinity" of the site and about a dozen more within two-to-three miles. Based upon his review of all of the pertinent data, Mr. Hurst testified that the surface depressions on the site probably are part of a "lineament"--i.e., a fracture in the limestone formation below the earth's surface along which sinkholes tend to form. While he was unable to testify that an active sinkhole existed at the site, he maintained that the information presented to him was insufficient to disprove the existence of an active sinkhole at the site. He also testified to his opinion that relic sinkholes probably existed under the retention ponds. As found in the Recommended Order in Case 05- 2606: A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection--referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer. Mr. Hurst testified that, even if no active sinkhole existed at the site, the likely relic sinkholes made it more likely that active sinkholes would open there and create a direct conduit to the aquifer. At the final hearing and in its proposed recommended order in Case 05-2606, LRAS argued that the Spanish Oaks retention ponds violated Rule 62-522.300, even if they were not constructed over active sinkholes but rather only over relic sinkholes. As concluded in the Recommended Order and Final Order in Case 05-2606, such an interpretation of the Rule would be "incorrect" and a "misperception." But LRAS' primary argument was that Spanish Oaks did not provide reasonable assurance that there were not active sinkholes at the site, and the "fall-back" argument was not unreasonable to make based primarily on Mr. Hurst's testimony. The Petition also asserted that LRAS had no evidence in support of its allegation that the required clay core was not installed, or that required erosion control measures were not provided. But facts supported a finding that Spanish Oaks did not notify SWFWMD, as required, which was ruled to be relevant to the provision of reasonable assurance in general, and the erosion control issue was a minor feature of the Amended Petition, and the Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, filed in Case 05-2606 did not mention it. Evidence was presented during the final hearing in Case 05-2606 that the challenge in LRAS' Petition and Amended Petition was virtually identical to a challenge to Spanish Oaks' ERP that was filed by Donna Starks on behalf of her not-for- profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours received mailed notice of the issuance of the ERP to Spanish Oaks on April 27, 2004. Spanish Oaks implied during the final hearing in Case No. 05-2606 that Donna Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for leverage to accomplish her ulterior motive- -namely, purchase of the property by EcoTours. But those allegations were denied by LRAS and were not proven during the hearing in Case 05-2606.
The Issue The issue in this proceeding is whether the Respondent violated Pinellas County Ordinance 84-10, codified as Chapter 17.5 of the Pinellas County Code, by discriminating against the Petitioner with respect to employment in retaliation for his having filed charges of race discrimination.
Findings Of Fact The Petitioner, Willie F. Marshall ("Marshall"), is a black man who resides in Pinellas County, Florida. Respondent, Oak Manor Nursing Home ("Oak Manor"), is a nursing home located in Pinellas County, Florida. Oak Manor has approximately 180 residents in the nursing home. The average age of the residents is 85 years, and the majority of them require acute care or other medical supervision. Oak Manor also operates a retirement apartment complex and a 70-bed adult congregate living facility. Oak Manor is entrusted with caring for and protecting the persons and property of these residents. Patricia McCormack ("McCormack") was Oak Manor's administrator during Marshall's employment there. Robert W. Bell ("Bell") was, and continues to be, the president of American Nursing Homes, Inc., a company which provides management services to Oak Manor. Bell functioned as Oak Manor's general manager during the period of Marshall's employment. Marshall was employed at Oak Manor from June 18, 1991, until April 13, 1992, when he was terminated. Oak Manor paid Marshall a starting wage of $5.00 per hour. Marshall was hired initially as a dietary aide, working in Oak Manor's kitchen. His duties included cleaning the kitchen and serving meals to the nursing home residents. During his employment, Marshall had regular and frequent contact with the nursing home residents. At the time he was hired, Marshall disclosed that he had been convicted twice for sale and possession of cocaine, and he authorized Oak Manor to investigate his background with local law enforcement authorities, as Oak Manor does with all applicants for employment. On or about the date that Marshall began working, Oak Manor sent a letter to the Pinellas County Sheriff's Office inquiring as to whether Marshall had any criminal record. The Sheriff's report stated that Marshall had been arrested or convicted of more than a dozen offenses, including not only the cocaine possession charges Marshall had disclosed on his employment application but also charges for petit theft, battery, armed robbery (twice), strong-arm robbery, and battery on an inmate (twice). Oak Manor's personnel director at the time, Susan Massa, presumably received the Sheriff's Office's report, but did not place it in Marshall's personnel file. Nor did she inform Oak Manor's top management personnel, Bell and McCormack, about Marshall's criminal background. Massa left Oak Manor's employment early in 1992. The personnel director position at Oak Manor has never been a management level position. The personnel director has never had the authority to make hiring and firing decisions. In September, 1991, Marshall received a wage increase of $.25 per hour. In October, 1991, Oak Manor promoted Marshall from dietary aide to cook and increased his hourly wage again, to $6.00 per hour. In January, 1992, Marshall requested that Oak Manor return him to his former position as dietary aide, stating that the cook's position was too stressful. In February, 1992, a dietary aide position became available at Oak Manor, and Marshall accepted the position. Approximately two weeks later, Oak Manor reduced Marshall's hourly wage back to that of a dietary aide, but allowed him to keep the pay raise he had received as a cook. In March, 1992, Marshall was referred to McCormack to find out why his pay had been reduced. McCormack told Marshall that Oak Manor would allow Marshall to keep two weeks' pay he already had received at the cook's rate but explained that, from then on, Oak Manor could not pay him more than other people doing the same job. On or about April 17, 1992, Marshall filed a Charge of Discrimination, claiming that Oak Manor demoted him and reduced his pay based on his race. (He also complained that the person selected to replace him as cook was white.) On or about February 23, 1993, the investigating agency issued a "no- cause" determination on Marshall's race discrimination charge. When Oak Manor received the race discrimination charge, at Bell's direction, McCormack requested and reviewed Marshall's employee file so that she could assemble and forward relevant information to the investigator. The report from the Pinellas County Sheriff's Office listing Marshall's arrests and/or convictions was in Marshall's employee file at the time McCormack reviewed it. It is unknown who placed it in the file, but it probably was filed by Massa's replacement as personnel director, who assumed her duties in approximately late February, 1992. While examining Marshall's file to respond to the race discrimination charge McCormack learned, for the first time, of the full extent of Marshall's criminal record. McCormack immediately put Marshall on paid suspension until she had an opportunity to advise Bell of this information. Based upon Marshall's criminal record, Bell decided to terminate Marshall's employment immediately. Bell and McCormack became aware of Marshall's criminal background only in the course of preparing to respond to the race discrimination charge that Marshall filed. If Bell or McCormack had known about Marshall's arrests or convictions previously, Oak Manor would not have hired him in the first place. Both Bell and McCormack testified that the previously filed race discrimination charge did not in any manner motivate the decision to terminate Marshall. Marshall felt that, in terminating him, Oak Manor was discriminating against him on the basis of race, or retaliating against him for having filed a race discrimination charge, for several reasons. First, he testified that he had told other employees about his criminal record and that he did not understand why the issue was not raised sooner. But he did not call any witnesses to corroborate his testimony. Moreover, the employees to whom he was referring were not members of Oak Manor's management, and there is no evidence that they relayed the alleged information to Oak Manor's management (McCormack and Bell, in particular). Second, Marshall testified that three other employees with criminal records as bad or worse than his were still working at Oak Manor. But, again, he did not call any witnesses to corroborate his testimony, and he was unable to prove the criminal records of the three individuals to whom he made reference. Moreover, he was unable to prove that Oak Manor (McCormack and Bell, in particular) were aware of the criminal records of the three individuals to whom he made reference. Meanwhile, Oak Manor presented evidence suggesting that it terminated several white employees soon after Oak Manor's management became aware of a Sheriff's report showing a criminal arrest and conviction record similar to Marshall's. (Since the evidence did not establish the date on which the Sheriff's reports were received, it could not be ascertained how soon Oak Manor acted after the report was received.) Marshall also was suspicious that, to his understanding, he was initially told that he was fired for falsifying his job application, not because his arrest and conviction record posed an unacceptable risk of harm to the Oak Manor patient population. But it is found that Marshall misunderstood Bell and McCormack when they told him that his job application did not disclose all of the arrests and convictions on the basis of which Bell had decided to terminate him. The evidence also reflects that Oak Manor did not react to arrests or convictions for simple sale and possession of drugs as severely as they did against crimes like robbery, battery and thefts. It appears that convicts of the latter crimes were considered to create a more serious risk to the Oak Manor patient population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Community Relations Board, acting as the commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order: (1) finding the Respondent, Oak Manor Nursing Home, not guilty of race discrimination or of retaliating against the Petitioner for his having filed a race discrimination charge against the Respondent; and (2) dismissing the Petitioner's complaint. RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of July, 1993. COPIES FURNISHED: Willie F. Marshall 13577 120th Street North Largo, Florida 33601-1102 Wendolyn S. Busch, Esquire Trenam, Simmons, Kemker, Scharf Barkin, Frye & O'Neill P.O. Box 1102 Tampa, Florida 33601-1102 Sally A. Ruby Community Relations EO Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue Whether Certificate of Need (CON) Application Number 9478 filed by Hernando HMA, Inc. (HMA or Hernando HMA), d/b/a Brooksville Regional Hospital (Brooksville Regional) for approval to replace and relocate its existing 91-bed hospital in Hernando County, Agency for Health Care Administration (AHCA) District 3, Subdistrict 6, meets the applicable criteria for approval.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency authorized to administer the certificate of need (CON) law in Florida. AHCA is the designated state health planning agency. See Subsections 408.034(1) and 408.035(1), Florida Statutes. AHCA Health Services Planning District 3 is composed of Hamilton, Suwannee, Lafayette, Dixie, Columbia, Gilchrist, Levy, Union, Bradford, Putnam, Alachua, Marion, Citrus, Hernando, Sumter, and Lake Counties. See Subsection 408.032(5), Florida Statutes. Within District 3, Hernando County is designated acute care subdistrict 6. The three acute care hospitals in the County are Hernando HMA, Inc., d/b/a Brooksville Regional Hospital (Brooksville Regional) which was previously operated under the name of Lykes Memorial Hospital, Spring Hill Regional Hospital (Spring Hill), and HCA Health Services of Florida, Inc., d/b/a Oak Hill Hospital (Oak Hill). HMA Hernando HMA is the applicant for CON Number 9478 to replace and relocate Brooksville Regional, an existing 91-bed hospital in Brooksville, Florida. Constructed over a 40-year time period to a maximum size of 166 beds, Brooksville Regional is currently licensed to operate 91 beds. In the early 1990s, 75 beds were transferred from Brooksville Regional to establish Spring Hill. Spring Hill is located in southwest Hernando County near the Hernando/Pasco County line. Health Management Associates, Inc., the parent of Hernando HMA, is a publicly traded for profit corporation, with headquarters in Naples, Florida. Hernando HMA leases and operates, under a single state license, both Brooksville Regional and Spring Hill. Both are owned by Hernando County. In 1998, the County entered into a 30-year lease agreement for HMA to assume the management of the hospitals which were then bankrupt. HMA acquires primarily non-urban area hospitals in need of capital and/or new management strategies to reverse patient out- migration. The corporation owns or operates 43 hospitals in 14 states, including 13 in Florida. HMA has rebuilt and replaced 8 of the 43 hospitals it has acquired since its establishment in 1977. In addition to Brooksville Regional and Spring Hill, in Hernando County, HMA also operates Pasco Regional Medical Center (Pasco Regional), in adjacent northeast Pasco County, in AHCA District 5. See Subsection 408.032(5), Florida Statutes. Pasco Regional, a 120-bed hospital located on U.S. Highway 301, in Dade City, Florida, serves residents of eastern Hernando and Pasco Counties who reside along the four-lane corridor, in the communities of San Antonio, St. Leo, Trilby, Lacoochee, Ridge Manor, Dade City, Zephyrhills, and Wesley Chapel. Because of the emergency medical transport policy of taking patients to the nearest hospital, over 85% of those transported from eastern Hernando County are taken to Pasco County hospital emergency rooms. Hernando HMA's 1998 lease agreement with Hernando County required HMA to pay the debts necessary for the hospitals to emerge from bankruptcy, to provide Medicaid and charity care for Hernando County residents, and to provide $25 million in capital improvements to the two hospitals. To date, $15 million has been spent, $7 million for improvements to Brooksville Regional and $8 million for Spring Hill. Under the terms of the lease, the proposal to relocate the hospital required County approval. At a meeting held on September 25, 2001, Hernando County Commissioners vote unanimously to allow the filing of CON Number 9478. Hernando HMA proposes to replace and relocate Brooksville Regional to a 95-acre site on which it has a purchase option for $25,000 an acre. The total estimated project cost is $52 million, $33 million of that for construction. The parcel is located at the intersection of Lykes Dublin Road and a four-lane stretch of State Road 50. The proposed new site is 2.7 miles west of the existing site and 1.8 miles west of Cobb Road where the southern Brooksville City bypass of State Road 50 ends. HMA has agreed to donate the hospital, and approximately 25 acres of underlying and surrounding land to Hernando County. HMA will continue, under the terms of the lease, to manage the hospital, and also plans to build medical offices on the remainder of the parcel of land. Brooksville Regional is currently located, on approximately 11 acres on Ponce De Leon Boulevard in downtown Brooksville, a mile east of the State Road 50 bypass and one- tenth of a mile from U.S. Highway 41 which is being increased from four to six lanes. The City of Brooksville opposes the relocation of the hospital to the new site which is 1.5 miles beyond the city limits. Oak Hill Oak Hill is a 204-bed hospital, located just off State Road 50, in western Hernando County. Oak Hill was constructed 18 years ago on a 40-acre campus which includes two medical office buildings, related structures for staff offices and plant operations, and a cancer institute. Oak Hill is approximately five miles west of Brooksville's proposed new site, and eight miles west of its existing location. Oak Hill, like many Florida hospitals, experiences seasonal variations in occupancy. Typically, utilization reaches up to 90% in the first quarter of the year and goes down to 60% in the fall. Occupancy rates have been growing approximately 4% a year from 1997 to 2000, but from 2000 to 2001, patient days at Oak Hill increased 8%. Oak Hill has also recently received CON approval to establish an open heart surgery program, which is expected to reverse the out-migration of open heart surgery and other cardiac patients, primarily to another HCA facility, Bayonet Point in Pasco County. Bayonet Point is 17 miles or a 30-minute drive from Oak Hill. With the anticipated reversal of some out- migration, and a 2% annual increase in patient days, Oak Hill will have over 100% occupancy in the first quarter of 2005, going down to 74% occupancy in the fall of that year. Oak Hill opposes the proposal to relocate Brooksville Regional. Oak Hill asserts (1) that the proposed new location is less desirable than alternative sites suggested by the City of Brooksville; (2) that Brooksville Regional failed to demonstrate that replacement rather than renovation of the existing building is necessary; (3) that the proposed site will decrease access for residents in eastern Hernando County; and (4) that the replacement and relocation will adversely impact Oak Hill. The published fixed need pool for the subdistrict indicated no need for additional acute care beds. Brooksville Regional's proposal to relocate, but not add beds, is not inconsistent with the fixed need pool. CON review is required and is not expedited in this case because Brooksville Regional is proposing to relocate to a different site which is more than one mile from its current site. Review criteria The parties, in a prehearing stipulation, agreed that Brooksville Regional and Oak Hill have good records of providing quality care and can be expected to continue, as required by Subsections 408.035(2) and (3), Florida Statutes (2001). The parties agreed that Brooksville Regional's staffing projections are reasonable and sufficient based on its projected utilization, but Oak Hill disputed the accuracy of the utilization projections. The parties agreed that the design and schematic drawings for the new hospital are reasonable. The parties acknowledged that there will be an adverse impact on Oak Hill as a result of a loss of some employees, physicians, and patients, the magnitude of which has to be considered under Subsection 408.035(9), Florida Statutes (2001). The parties stipulated that Brooksville Regional has sufficient resources, including personnel and funds, to accomplish the project and operate the facility, as required by Subsection 408.035(6), Florida Statutes (2001). The parties agreed that Subsection 408.035(5), related to the needs of research and educational facilities; and Subsection 408.035(12), Florida Statutes (2001), related to nursing home beds, are not at issue in this proceeding. The parties stipulated that, at issue, are the criteria in Subsections 408.035(1), (2), (4), (7), (8), (9), (10), (11); and Subsections 408.037(1)(b)3. and (c), Florida Statutes (2001); and Florida Administrative Code Rules 59C-1.008(3) and (5), 59C- 1.030(2)(a) through (f), and 59C-1.038(6)(a). District health plan District 3 health plan criteria related to the establishment or expansion of services, the establishment of services in a community with no current service, the addition of beds, and the establishment of new facilities are not applicable to this project. Oak Hill's health planning consultant noted, however, that criteria related to bed transfers could also relate to a proposal to relocate an entire hospital. Those considerations include whether Medicare and private pay markets of disproportionate share charity and Medicaid hospitals will be adversely affected, whether access generally, and access particularly for Medicaid and indigent patients, or other traditionally underserved groups, will be improved. The criteria also overlap those in other applicable statutes and rules. See also Subsections 408.035(2), (7), and (11), Florida Statutes (2001); Rule 59C-1.038(6)(a) and Rule 59C-1.030(2)(a) through (f), Florida Administrative Code. Other relevant considerations include whether the transfer is needed and is more cost-efficient than renovation or expansion of the existing facility, and whether the proposal is financially feasible. See also Subsections 408.035(1), (4), (8), (9), and (10), Florida Statutes (2001). Medicaid and indigent care Hernando HMA, at Brooksville Regional and Spring Hill combined, provided approximately 71% of total charity care in the County in 2000, and 79% in 2001. Brooksville Regional is a disproportionate share provider of Medicaid, having provided approximately 8% of its total care to Medicaid patients. Brooksville Regional separately provided more Medicare, but half as much Medicaid as Spring Hill which, unlike Brooksville Regional, has obstetrics and neonatal intensive care programs which typically provide services to a large number of economically disadvantaged mothers and newborns. Oak Hill provided the remaining 20 to 30 percent of the charity care in Hernando County. Approximately 6% of Oak Hill's patients are in the Medicaid payor category, but Oak Hill is not a disproportionate share provider. Oak Hill provided almost 2% of its total revenues for charity care in 2000, and its Medicaid care increased from approximately $7.4 million in 2000, to $12.3 million in 2001. Although Hernando HMA did not offer a CON condition related to a specific level of Medicaid and charity care, its historic levels and Hernando County's continued ownership of the hospital provide the assurances required by the criteria. Geographical access Hernando County had a population of 130,810 people in 2,000, which increased to 136,552 in February of 2002, and is projected to be 159,400 people in 2010. There are 7,227 residents of the City of Brooksville, and 129,313 in unincorporated areas of the County. The population is more dense, more growth is projected, and more development is allowed under the comprehensive plan, in the central and western portions of the County. The population in the zip codes east of Interstate 75 was, in 2001, 4,301 of the total of 132,590. By 2010, the eastern area is projected to have 1,295 more people as compared to a projected increase of 19,401 people in areas west of Highway The projected areas of most intense population growth are in western Hernando County, clustered around U.S. Highway 19, to the north of State Road 50, and Highway 41, to the south of State Road 50. These are also areas with a high concentration of the population over 65 in a "retirement belt." East of Interstate 75, the population of Hernando County is more sparsely settled, younger, and has a lower mortality rate. More eastern area residents who need inpatient acute care, on an elective or emergency basis use the closest hospitals, Pasco Regional in Dade City and East Pasco Community Hospital (East Pasco) in Zephyrhills. In recent years, the trend towards utilization of Pasco county hospitals by eastern Hernando County residents has increased. Residents in the area also use hospitals in Lake County. The Hernando County Board of County Commissioners hired Tribrook Healthcare Consultants to report on the relocation proposal, including consideration of access for residents of eastern Hernando County. Residents of the three eastern zip codes accounted for 83 discharges from Hernando County hospitals from the second quarter of 1999 through the first quarter of 2000. Of those, 43% or 36 discharges were from Brooksville Regional, 18% or 15 from Spring Hill, and 39% or 32 from Oak Hill. For the year ending June 30, 2001, fifty-three discharges from Brooksville Regional and 28 from Oak Hill originated in the three eastern zip codes. From January through August 2001, the Hernando County Fire and Rescue service responded to 259 emergency health care calls from the eastern area, which represents approximately 5% of its total volume of 4,863 transports. Of the 259 transports, 109 people were taken to the emergency room (ER) at Brooksville Regional, and an equal number to the Pasco Regional ER, 14 to the East Pasco ER, and eight to the Oak Hill ER. Level one trauma patients, such as those with severe injuries from Interstate car accidents, are air lifted to trauma centers at Orlando hospitals, Tampa General Hospital or Bayfront Medical Center in St. Petersburg. If Brooksville Regional is relocated to the proposed new site, the increase in average peak travel times from various locations in the County will range from four to six minutes, for total average travel times ranging between 10 and 21 minutes. For the majority of the County residents, the average peak travel times will decrease, saving from one to six minutes, since the new location is closer to more densely populated residential areas. The acute care travel time goal is to have most residents able to reach the service within 30 minutes. The standard is already met and will, with Brooksville Regional's proposed relocation, continue to be met in District 3, Subdistrict 6. The residents of the County in the eastern areas will not be adversely affected by the relocation because relatively few use Brooksville Regional, and because, for many residents along the U.S. 301 corridor, Pasco Regional is more accessible. In addition, in return for approval of the Brooksville Regional relocation proposal, Hernando County required HMA to purchase an ambulance with advanced life support equipment to station in the eastern area near Interstate 75. There is credible evidence that, in some cases, the time it takes for paramedics to reach an emergency patient and begin treatment can be more important in saving lives than the actual travel time to a hospital emergency room. The conditions imposed by the County also required a $20,000 contribution from HMA for an indigent patient clinic and recruitment of a physician to staff a clinic in the eastern area. Relocation and replacement vs. renovation; alternative sites The proposed relocation site was criticized as inappropriate geologically. The property includes wetlands. Agricultural land across the street drains through a ditch under the road into a pond on one corner of the property. The elevation of the land at State Road 50 is 90 feet above sea level, increases to 95 feet but then slopes down to 65 feet at Wiscon Road. There are sinkhole-like depressions towards the back of the property. To meet state disaster preparedness standards, the elevation of a hospital must be equal to or above the major thoroughfare leading to the entrance. Brooksville Regional can be constructed on the proposed site with its main entrance facing and above the elevation of State Road 50. Other entrances can also be elevated using fill dirt. In general, the site meets the County land use criteria and has sufficient uplands. It also meets the criteria developed by HMA and its land planning consultant for (1) a minimum of 40 acres, (2) the potential for traffic signalization, (3) proximity to population growth centers, and (4) good visibility from passing traffic. Currently, Brooksville Regional is located on 11 acres in two separate three-story towers connected through a central building on the ground floor. The building is constructed from 10 to 15 feet below the street it faces, Ponce De Leon Boulevard. The entrance floods in heavy rains and lacks good visibility from street traffic. During the last four years, improvements at Brooksville Regional have included a new roof, lobby renovations, electrical upgrades in the operating room, the installation of new air handlers, and substantial investments in new equipment. Despite the improvements, the physical plant cannot be renovated to meet current codes and the layout of the building inevitably results in inefficiencies. Oak Hill noted, however, that the building is not technically violating any code but is "grandfathered." In addition, none of deficiencies affect Brooksville Regional's ability to provide excellent care, as measured by it score of 97 out of 100 on the most recent survey by the Joint Commission on Accreditation of Health Care Organizations. Patient corridors, in one tower, are less than eight feet wide as required by the National Life Safety Code. The building is not in compliance with the Americans With Disabilities Act (ADA). The parking area exceeds the level for a ramp to the building. Electrical, heating, ventilation and air conditioning (HVAC) systems require major upgrades to meet codes. Improvements are limited by the inadequately sized ceiling spaces for ductwork and pipes. The HVAC inefficiencies are estimated to cost Brooksville Regional from $400,000 to $500,000 a year. The major functional inefficiencies at Brooksville Regional result from the configuration in two separate towers. Staff must cross the central core and use one of two elevators in each tower to provide care, deliver food, remove trash and soiled linens, and transport patients. The elevators and corridors are shared with visitors. The separate towers divide patients into smaller, inefficient groupings which require more staff. One witness cited a cost estimate of $250,000 for a pedestrian walkway to connect the second and third floors of the two towers. Oak Hill criticized the absence of any other cost estimates for renovation of the existing building. If any major renovations are undertaken, all "grandfathered" code exemptions will be lost. The hospital would have to be closed and rebuilt. Inadequate space compromises patient privacy in various areas, including the emergency room and surgical suite. Spaces are inadequate for modern equipment in appropriate locations, so, for example, a CT scan, is located outside the radiology department, and 140 feet from the emergency room Brooksville Regional proposes to increase the size of the radiology department from approximately 6,400 square feet in the existing building to 16,000 square feet in the new building. Operating rooms currently range from 245 to 345 square feet as compared to code requirements of 450 to 600 square feet, with the larger rooms necessary to accommodate surgeries, such as orthopedics, which require larger equipment. The total size of surgical department is approximately 6,200 square feet while the guidelines suggest it should be 10,800 square feet. The new plan includes 6,300 square feet for the pharmacy and laboratory combined, which now occupy approximately 3,000 square feet. Overall, the new building will be almost 182,000 square feet, 65,000 square feet larger than the existing facility. The new plan also offers all private patient rooms, except one semi- private room, consistent with the current industry trend which is intended to allow family members to spend the night with patients. The design is taken from a prototype used by HMA to construct five other replacement hospitals in the last five years. Therefore, HMA is certain that the estimated construction cost is reasonably accurate and that the design works well for patients, visitors, and staff. Considering the deficiencies in the current structure which could only be corrected by closing the hospital completely and rebuilding it on site, taking five to six times as long as construction of a new facility, renovation of the existing structure is not a viable alternative. The City of Brooksville suggested other sites it favored over that selected by Brooksville Regional. The first parcel examined was 32 acres, not HMA's required minimum of 40 acres for the prototype. It would require assembling separate parcels and closing streets. The second, with 49 acres, is located on a two-lane city street and has a large pond in the center of the tract. A third, with 55 acres, would have to be shared with a post office carrier facility and lacks good visibility because of its location on a curve. The fourth site has 38 acres, but is too narrow for the prototype and is well below the elevation of State Road 50. The fifth tract is south of the fourth. It has 46 acres which, if acquired with the 38 acres to the north would be more than adequately sized, but is even lower than the parcel to the north and has a lake in the center. A sixth site with 66 acres is too long and narrow for the prototype. Finally, the City suggested assembling more parcels surrounding the existing building, which would require the acquisition of 38 to 40 lots, but that tract would be long and narrow. As previously noted, the hospital would have to close for reconstruction for a substantially longer period of time than required for new construction. The possibility that the City would donate a portion of an adjacent park was discussed but it was never formally offered. It is also currently the location of fire and police stations. That acquisition also would have required the condemnation of roads. Costs, financial feasibility, adverse impact and cost-effectiveness competition The cost for the new facility is estimated at $52 million. The parties stipulated that HMA can fund and operate the project. And, though previously bankrupt, Brooksville Regional had pre-tax profit of $5 million in 2001. The financial feasibility of the project was questioned. Oak Hill's expert criticized an underlying assumption that Medicare reimbursement would increase 6.4% from the first to second year. Taken in isolation, the increase looks unrealistic, but viewed over the entire time period from the base year to the second year of operation, the average annual rate of inflation is 2.5%, and is reasonable, as is the resulting projected Medicare revenues. Brooksville Regional's financial schedules included a management fee of 3% of gross revenues, although HMA has recently charged up to 4% to individual hospitals. HMA can assess a management fee of 3% rather than 4%, which one of its officers described as conservative considering that its actual corporate overhead is less than one percent of revenues. The assessment is based on tax considerations more than on actual costs. In addition to the management fee, Brooksville Regional's start-up costs, equipment costs, and depreciation costs were questioned as too low. Even when deducted from projected revenues, however, the additional expenses do not render the project financially infeasible. The proposed project is financially feasible considering either the CON-projected incremental increases in profit, $437 thousand in the first year and $868 thousand in the second year, or the revised estimates in HMA/Brooksville Regional's Exhibit 56. In Exhibit 56, the projected increase in profits, after relocation, are $860 thousand in the first year and $1.3 million in the second year. See Conclusion of Law 79. Brooksville Regional currently operates at a competitive disadvantage. In 1999, Brooksville Regional had 3,758 discharges, which increased to 3,794 in 2000. By contrast, Oak Hill increased its discharges from 10,575 in 1999, to 11,376 in 2000, and up to 12,743 in 2001. Excluding approximately 400 newborns, the increase in discharges is not entirely attributable to population growth. It also reflects Oak Hill's increase in market share. Overall occupancy rates were 80% at Spring Hill, 70% at Oak Hill, and 62% at Brooksville Regional in 2001. If the new hospital is built, Brooksville Regional projected it would have 405 more discharges in the first year of the project and 413 more in the second year, for an increase in revenue of $1.3 million in the second year. Oak Hill suggested the incremental increase in the number of patients was insufficient to justify a $52 million expenditure, yielding only $1.3 million or 2.5% return on investment, while HMA returns average approximately 15%. Oak Hill also maintained that Brooksville Regional underestimated the projected increase in discharges which would result from the proposed relocation and replacement. Oak Hill's expert estimated that Brooksville Regional would have 770 discharges in the first year and 1,146 in the second year of operations. If Brooksville Regional has more discharges, its revenues and profits will also be higher. Of those 1,146 year two discharges, Oak Hill estimated that it would have captured 823 admissions in the absence of a new Brooksville Regional hospital. Oak Hill's expert planner also asserted that the loss of patients would make Oak Hill less efficient and less cost- effective, and result in higher charges at Brooksville Regional. In addition to opening a new open heart surgery program, Oak Hill is undergoing $10 million in emergency room renovations. With these, Oak Hill is projected to reach between 82 and 83% average occupancy, in 2004 and 2005, before Brooksville Regional could become fully operational. The optimum is around 75%. Oak Hill argued that it could absorb the projected growth through the CON-exempt addition of 20 beds which would return occupancy to reasonable levels between 75 and 76%. The costs incurred for the addition, however, will be unnecessary if Brooksville Regional is more competitive and utilized more efficiently. As estimated by Oak Hill's expert, the proposed relocation of Brooksville Regional will leave Oak Hill with 12,243 discharges in 2005, and 12,265 discharges in 2006. Assuming the estimate is correct, Oak Hill will be at approximately the same volume as it currently experiences. There is no suggestion that its operations are not cost-effective or efficient at between 11,000 and 13,000 discharges. The pre-tax income decrement could be as high as $1.93 million. In the context of the Oak Hill budget of $17.1 million for 2002, and considering its competitive advantages, the adverse impact to Oak Hill is outweighed by the need for improvements at Brooksville Regional. Oak Hill's expert estimated that Brooksville Regional's projected volume was understated and that additional admissions should be expected based on more recent trends in utilization. If Brooksville Regional reached that volume, then revenues at the new facility would increase an additional $1.8 million, to a pretax total exceeding $6 million. The project is financially feasible, therefore, and the costs are justified to enhance the efficiency and competitiveness of Brooksville Regional. Oak Hill noted that the impact of the development of the entire 95-acre site is likely to be greater than that of the 25-acre hospital tract. Whether the same owner held the entire tract or not, there is no reason to expect that land surrounding a hospital would not become medical office buildings and related health care services. Oak Hill will face competition from a 60-bed Healthsouth comprehensive medical rehabilitation hospital currently under development approximately two miles away on State Road 50 in the direction of the Brooksville Regional site. The impact of the rehabilitation hospital, a reduction in acute care lengths of stay, will apparently be felt by all acute care hospitals throughout the region not just Oak Hill. There is no evidence to indicate that the combined impact of Healthsouth and Brooksville Regional on Oak Hill justifies the denial of the proposed relocation of Brooksville Regional. HMA's letter of intent and financial statements HMA's letter of intent indicated that the project costs would not exceed $40 million, but the CON project cost is $52 million. Since letters of intent are not required to include project costs, AHCA has taken the position that the error in the letter of intent is insignificant as long as the project was identified with sufficient specificity. AHCA received the audited financial statements for Hernando H.M.A., the applicant, but not separate audited financial statements for Brooksville Regional. Oak Hill's expert suggested that AHCA received inadequate information to determine the financial feasibility of the project. Hernando HMA's audited financial statement and Schedule 2, with its other financial commitments, demonstrated its ability to provide the funds. The separate financial schedules related to Brooksville Regional's operations, especially Schedules 7 and 8 provided the information necessary for AHCA to determine if the project is financially feasible. Hernando HMA has demonstrated that it met the letter of intent and application content requirements, and that, on balance, it meets the criteria to relocate and replace Brooksville Regional as proposed in CON Application No. 9478.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order approving CON Application No. 9478 for Hernando HMA to relocate and replace Brooksville Regional as proposed in the application. DONE AND ENTERED this 24th day of December, 2002, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 December, 2002. COPIES FURNISHED: James C. Hauser, Esquire Metz, Hauser & Husband, P.A. 215 South Monroe Street, Suite 505 Post Office Box 10909 Tallahassee, Florida 32302-2902 Stephen A. Ecenia, Esquire R. David Prescott, Esquire Thomas W. Conrad, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403
The Issue The issue in this case is whether Respondent, Oakmonte Village, committed an unlawful employment practice against Petitioner, Paulette 1 All statutory references are to Florida Statutes (2019). Relevant provisions of chapter 760 have been unchanged since 2015, prior to any allegedly discriminatory acts. Lewis (Ms. Lewis or Petitioner), on the basis of her race, color, national origin, marital status, religion, age, and/or in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Royal Senior Care Management is a healthcare facility campus operating in Lake Mary, Florida. The campus includes an independent living facility, an assisted living facility, and Oakmonte Village, which is a stand- alone memory care facility that caters exclusively to residents suffering from Alzheimer’s disease and dementia. Ms. Lewis is a 52-year-old black woman. She self-identifies as light- skinned. Ms. Lewis testified that her skin color is lighter than the other black employees who worked for Oakmonte Village. She was born in Jamaica. She is married and a Christian. 3 On January 2, 2020, Oakmonte Village filed Respondent’s Response to Notice of Ex Parte Communication and Motion to Strike (in part), directed to Petitioner’s first post-hearing filing. The motion sought to strike/disregard all references in Petitioner’s filing to a settlement agreement. The motion was granted. References to a settlement were not considered in the resolution of this case. At all times relevant to Ms. Lewis’s complaint, Mr. Jones was the director of Resident Care at Oakmonte Village. Mr. Jones is a 42-year-old black man. He is of American and Jamaican descent. He is currently married, but was not married at all times relevant to the allegations in Ms. Lewis’s complaint. Mr. Jones’s current wife, who was his then romantic companion, is half-Jamaican. Mr. Jones reports directly to Mr. Marshall. Mr. Marshall is the director of Oakmonte Village. Mr. Jones and Mr. Marshall conducted a joint interview of Ms. Lewis for the position of resident caregiver. Mr. Jones and Mr. Marshall, collectively, agreed to hire Ms. Lewis.4 Ms. Lewis began working for Oakmonte Village in November 2017, starting as a part-time resident caregiver. On December 10, 2017, her employment status was changed from part-time to full-time. Ms. Lewis was a resident caregiver throughout her time with Oakmonte Village. By all accounts, Ms. Lewis was an excellent caregiver, with no marked deficiencies in her job performance. Oakmonte Village hires both resident caregivers and medication technicians to care for its residents. At the time Ms. Lewis was hired, resident caregivers were paid $9.00 per hour and medication technicians were paid $10.00 per hour. Ms. Lewis was hired at a rate of pay of $9.50 per hour, more than a typical resident caregiver. She was not hired as a medication technician because she did not have the required certification. Oakmonte Village offers medication technician training to its resident caregivers when it has a need for more medication technicians. Oakmonte Village also offers recertification training to its certified medication technicians. These trainings are conducted at Oakmonte Village by an 4 Ms. Lewis testified that Mr. Jones and Mr. Marshall were aware that she was Jamaican when they hired her. Ms. Lewis also testified that she believed Mr. Jones desired to be Jamaican and had an affinity for Jamaican culture. These facts offered by Ms. Lewis are inconsistent with her claim of discrimination based on her national origin. affiliated company. If a resident caregiver successfully completes certification training, he or she is reclassified as a medication technician and given a raise. Not all resident caregivers can be trained upon request. Certification training is provided by Oakmonte Village based on facility needs. Oakmonte Village typically requires two to three medication technicians per work shift. If Oakmonte Village loses a medication technician, because of a resignation or shift change, it fills the vacancy with a new medication technician by training and certifying a resident caregiver. Employees are not allowed to enroll in the medication technician certification training on their own; they must be nominated by Mr. Jones. There are no strict requirements for the nomination. Mr. Jones testified that he makes the nomination decision based on the employee’s work ethic, skills, and level of responsibility, among other things. Mr. Jones also considers the facility’s needs. Ms. Lewis testified that, upon hire, Mr. Jones told her that in 60 days, she would be promoted to a medication technician. Mr. Jones and Mr. Marshall credibly testified that they tell all new employees that a medication technician certification is a potential means to get a pay increase, but no assurance is given, because none can be given, that certification will definitely be offered to a particular caregiver on a particular timetable. It is based on facility need and that need changes. Ms. Lewis was not nominated to complete the medication technician certification. In April 2018, Ms. Lewis saw a list of caregivers who were nominated by Mr. Jones to complete the certification. She added her name to the list, which was inappropriate because she was not authorized to nominate herself. When Mr. Jones noticed the list had been revised, he removed Ms. Lewis from the list. As Ms. Lewis was not nominated to attend the training, she was, essentially, prevented from getting a raise. Ms. Lewis testified that Oakmonte Village’s failure to nominate her for the medication technician training in April 2018 was based on a discriminatory act. Ms. Lewis offered no evidence to prove that she was treated differently, with respect to a nomination to complete a medication technician certification training, than any other similarly situated employee outside of her protected classes, or that she was not nominated because of her race, color, national origin, marital status, religion, and/or age. Newly hired Oakmonte Village employees are on probation for 90 days. Oakmonte Village directors are strongly encouraged, but are not required, to formally discuss an employee’s job performance after the 90-day probationary period. After employees successfully complete the 90-day probationary period, they are considered permanent employees. Ms. Lewis testified that during her time at Oakmonte Village, she was not given a three-month or six-month evaluation. A formal evaluation is not required at the three-month mark. Oakmonte Village conducted an informal evaluation of Ms. Lewis after her 90-day probationary period (at the three- month mark). Mr. Marshall testified that he informally discussed Ms. Lewis’s job performance with Mr. Jones and that they agreed that Ms. Lewis was doing a “fantastic” job and warranted permanent status. As a result, Ms. Lewis was removed from probationary status and made a permanent employee. It is undisputed that Ms. Lewis continued to work at Oakmonte Village for several months after her 90-day probationary period ended. Oakmonte Village does not conduct a six-month evaluation. After the three- month (90-day) evaluation, which may be formal or informal, the next evaluation that Oakmonte Village conducts is at the one-year mark. Ms. Lewis failed to offer evidence showing how Oakmonte Village’s failure to provide a formal evaluation at the three-month or six-month mark adversely affected her or constituted a discriminatory act. Further, Ms. Lewis offered no evidence showing that she was treated differently, with respect to evaluations, than any other similarly situated employee outside of her protected classes, or that Oakmonte Village’s failure to provide a formal evaluation was because of her race, color, national origin, marital status, religion, and/or age. Oakmonte Village employees who work 64 hours or more per pay period (or 32 hours or more per week) are considered full-time employees. Full-time employees have extra benefits, including paid time off. Ms. Lewis reported directly to Mr. Jones. Mr. Jones was in charge of setting her schedule. During the weeks of June 17 through 23, June 24 through 30, and July 1 through 7, 2018, Ms. Lewis was scheduled to work two days (16 hours) per week. As Ms. Lewis was a full-time employee, this amounted to a 50 percent reduction in her scheduled hours. On June 15, 2018, Ms. Lewis emailed Mr. Marshall to complain about her reduced scheduled hours. Mr. Marshall was on vacation when he received the email, but agreed to discuss the matter with her when he returned. On June 16, 2018, Ms. Lewis emailed Mr. Jones to complain about her reduced scheduled hours. Mr. Jones told Ms. Lewis that he and Mr. Marshall would discuss her hours with her the following Monday. Mr. Marshall testified that upon his return to work, he discussed Ms. Lewis’s reduced hours with Mr. Jones and directed him to increase her hours to at least 32 hours per week. Ms. Lewis corroborated that this was accomplished when she testified that Mr. Jones called her in to work on several days to make up her reduced hours. For the week of June 17 through 23, Ms. Lewis worked and was paid for 16 hours. For the week of June 24 through 30, although she was initially scheduled to work for 16 hours, after Mr. Marshall spoke with Mr. Jones, Ms. Lewis worked and was paid for 40 hours. For the week of July 1 through 7, Ms. Lewis worked and was paid for 27.25 hours. Ms. Lewis’s last day at Oakmonte Village was July 5, 2018. She was scheduled to work eight hours on July 7, 2018. Had she worked on July 7, her total hours worked for the week of July 1 through July 7 would have been 35.25 hours. Ms. Lewis testified that the reason her hours were cut in June was due to Mr. Jones’s disdain for her because of her national origin, religion, color, and because she was a poet.5 Contrary to that description, Ms. Lewis testified that, during a meeting with Mr. Jones about her reduced hours, he told her that her hours were reduced because she was confrontational and not a team player. Ms. Lewis testified that she was the only Jamaican working at Oakmonte Village and that no other employees experienced a reduction in hours during this time. Ms. Lewis did not present any evidence at the final hearing, outside of her own assertions, that she was treated differently, with respect to scheduling of hours, than any other similarly situated employee outside of her protected classes, or that the reduction in work hours was because of her race, color, national origin, marital status, religion, and/or age. In fact, except for one week in June 2018, Ms. Lewis worked and was paid for more than 32 hours each week. Oakmonte Village operates continuously with three employee shifts: 6:00 a.m. to 2:30 p.m.; 2:00 p.m. to 10:30 p.m.; and 10:00 p.m. to 6:30 a.m. On July 4, 2018, Mr. Jones asked Ms. Lewis to come in to work the 10:00 p.m. to 6:30 a.m. shift (the night shift). She was not initially scheduled to work that day, and generally did not work the night shift, but in an effort to provide her more hours, she was asked to come in. During the July 4 to 5 night shift, Ms. Lewis worked alongside Monica Nurse (Ms. Nurse), Adrianna Rivera (Ms. Rivera), and Shanece Newman (Ms. Newman). Ms. Lewis testified that shortly after she arrived, she noticed Ms. Newman asleep at a desk, where she remained asleep for approximately two hours. Ms. Rivera asked Ms. Lewis to provide care to one of 5 Ms. Lewis testified at length that Mr. Jones disliked her because she was a poet and a writer. Writer/poet is not a protected class under the FCRA. Ms. Newman’s assigned residents. After tending to the resident, Ms. Lewis complained to Ms. Rivera about having to help Ms. Newman while also carrying out her own duties. This complaint instigated a verbal altercation between Ms. Lewis and Ms. Rivera. Ms. Nurse and Ms. Newman quickly joined the argument. Ms. Lewis testified that all three coworkers began screaming at her. Feeling threatened, Ms. Lewis called 9-1-1. As Ms. Lewis spoke to the 9-1-1 operator, Ms. Rivera contacted Mr. Marshall by telephone. A police officer arrived at the scene. Ms. Lewis testified that, by speaker phone, Mr. Marshall told her to return her emergency keys (which allowed her entrance to the building) and told her that she was fired. Mr. Marshall disputes this testimony. Mr. Marshall credibly testified that, by phone, Ms. Lewis told him that she could no longer work under those conditions and that she resigned. The persuasive and credible evidence presented at the hearing demonstrated that Ms. Lewis resigned because of the conflict with her coworkers. On July 5, 2018, Mr. Marshall emailed Ms. Lewis stating: “Thank you for your service I will mail your final check[.]” In response, Ms. Lewis emailed: “John my safety comes first. Sorry you didn’t see it that way. May God bless Oakmonte Village[.]” Ms. Lewis asserted during the final hearing that the events of the July 4 to July 5 night shift were planned by Mr. Jones and Mr. Marshall. Ms. Lewis testified that she was “set up” by Mr. Jones and Mr. Marshall so that the other three employees working that night would “jump” her. Mr. Jones and Mr. Marshall denied these allegations. Ms. Lewis presented no credible evidence that Mr. Jones and Mr. Marshall orchestrated the alleged “set up.” Further, even if this allegation were true, Ms. Lewis presented no evidence to prove that the “set up” was because of her race, color, national origin, marital status, religion, and/or age. Ms. Lewis asserts that during her time at Oakmonte Village, she experienced persistent discrimination.6 Ms. Lewis generally complained that Oakmonte Village had a hostile work environment. Ms. Lewis described an incident in November 2017, during her interview for the position for which she was hired, when Mr. Jones seemed taken aback by her non-existent criminal history. Ms. Lewis also testified that Mr. Jones once asked her “who the F do you think you are that your coworkers have to say please and thank you?” Ms. Lewis also had other personal conflicts with a few of her coworkers. Ms. Lewis complained, specifically, about her relationship with Ms. Debbie Perry (Ms. Perry). Ms. Perry is a 53-year-old black woman. Ms. Lewis testified that Ms. Perry frequently cursed at her and once intentionally bumped into her. Ms. Lewis complained to Mr. Marshall about her interactions with Ms. Perry. Mr. Marshall met with Ms. Lewis to discuss the issue and directed her to speak to him should the issue arise again. Mr. Marshall testified that he also spoke to Ms. Perry. Mr. Marshall indicated that after he met with them separately, Ms. Lewis presented no additional complaints about Ms. Perry. Ms. Lewis did not claim that either Ms. Perry’s alleged harassment, or Oakmonte Village’s response to Ms. Lewis’s complaint, was because of Ms. Lewis’s race, color, national origin, marital status, religion, and/or age. On or about July 3, 2018, a state agency conducted an investigation of Oakmonte Village. The nature of the investigation is unknown as no evidence about the type of or reason for the investigation was offered at the hearing. Ms. Lewis testified that rumors swirled at Oakmonte Village about a possible “informant.” Ms. Lewis testified that she was not the informant and she 6 Ms. Lewis offered several anecdotal circumstances, in addition to the ones provided in paragraph 29, such as whether Oakmonte Village’s work schedule listed her as a caregiver or medication technician, which she suggested were somehow discriminatory. None of her examples were persuasive. None could reasonably be considered evidence of discrimination because of her race, color, national origin, marital status, religion, and/or age. presented no evidence that her coworkers or supervisors believed she was the informant. Ms. Lewis suggested that Oakmonte Village retaliated against her for participating in a protected activity, but she did not identify a protected activity on which she is relying to make this claim, nor did she specify what action was taken in retaliation for the unidentified protected activity. Ms. Lewis alleged several bases for discrimination, including race, color, national origin, marital status, religion, and age, but did not present a persuasive case of discrimination based on any of those protected classes. Information related to claims based on her marital status and religion was not mentioned in any relevant detail at the hearing. Ms. Lewis failed to prove that Oakmonte Village’s reduction of her work hours, its decision to not nominate her for the medication technician certification training, and its failure to formally evaluate her were based on race, color, national origin, marital status, religion, and/or age discrimination, nor did she prove that any other similarly situated employees outside her protected classes were treated more favorably. Accordingly, Ms. Lewis failed to meet her burden of proving that Oakmonte Village committed an unlawful employment action against her in violation of the FCRA.
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 dismissing Ms. Lewis’s Petition for Relief. DONE AND ENTERED this 18th day of February, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Paulette Lewis 1658 April Avenue Deltona, Florida 32725 Timothy Tack, Esquire Fisher Phillips Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Which certificate of need application seeking to establish a new 120-bed community nursing home in Nursing Home District 6, Subdistrict 5 (Polk County), on balance, best satisfies the statutory and rule criteria for approval: Lakeland Oaks NH, LLC’s CON Application No. 10309, or Eighth Florida Living Options, LLC’s CON Application No. 10303.
Findings Of Fact The Parties Lakeland Oaks NH, LLC Lakeland Oaks, LLC, is a Delaware, limited-liability company formed by Greystone Healthcare Management Corporation (Greystone) for the purpose of filing its certificate of need application at issue in this proceeding. Greystone is a Delaware, for-profit, corporation which operates 26 skilled nursing facilities, two assisted living facilities, and six home health branches in Florida. It also operates 10 nursing homes in Ohio. Recently, Greystone constructed and opened a new nursing home known as The Club Health and Rehabilitation Center at the Villages (The Club Villages) in Marion County, Florida. Greystone is headquartered in Tampa, Florida adjacent to Polk County. Eighth Florida Living Options, LLC Eighth Florida Living Options, LLC, is a Florida, limited-liability company formed by Florida Living Options, Inc. (Florida Living Options) for the purpose of filing its certificate of need application at issue in this proceeding. Florida Living Options is a Florida not-for-profit corporation which operates three skilled nursing facilities, three assisted living facilities, and two independent living facilities in Florida. Among them, Florida Living Options operates an assisted living facility known as Hawthorne Lakeland in Polk County, Florida, and recently constructed and opened a new nursing home in Sarasota, Florida, known as Hawthorne Village of Sarasota. Florida Living Options is headquartered just outside of Tampa about six miles from the Greystone headquarters. Agency for Health Care Administration AHCA is the state agency that administers Florida’s CON program. Procedural History The Fixed Need Pool On October 3, 2014, the Agency published a need for 203 additional community nursing home beds in Nursing Home Subdistrict 6-5 encompassing Polk County, for the July 2017 Planning Horizon. In response, eight applicants, including Lakeland Oaks and Eighth Florida, filed CON applications seeking to establish new community nursing home beds in Polk County. On February 23, 2015, the Agency published official notice of its decisions on those applications. The Agency awarded all 203 beds from the fixed-need pool, approving applications filed by Florida Presbyterian Homes, Inc. (14 beds), Lakeland Investors, LLC (69 beds), and Lakeland Oaks (120 beds). The Agency denied the remaining applications; including Eighth Florida’s CON Application No. 10303 seeking 120 beds from the fixed-need pool. Eighth Florida initially challenged all three awards, but voluntarily dismissed its challenge to Florida Presbyterian Homes, Inc. and Lakeland Investors, LLC’s awards prior to the final hearing. As a result, only 120 of the 203 beds in the fixed-need pool are at issue in this proceeding. The Proposals Greystone’s Lakeland Oaks Lakeland Oaks’ CON Application No. 10309 proposes to develop a 120-bed skilled nursing facility (SNF) in Sub-district 6-5, Polk County, consisting of 60 private rooms and 30 semi- private rooms. Lakeland Oaks proposes to offer high quality, short- term rehabilitation services and long-term care services in a country club style atmosphere. Some of the services Lakeland Oaks plans to offer include physical, occupational, and speech therapy; wound care; pain management; and lymphedema therapy. Lakeland Oaks’ proposal is partially modeled after a new SNF established by Greystone called The Club Villages in Marion County, Florida. Greystone developed The Club Villages in 2012 through the transfer of 60 beds from New Horizon NH, LLC, d/b/a The Lodge Health and Rehabilitation Center, an existing 159-bed skilled nursing facility in Ocala, Marion County. The Club Villages provides short-term rehabilitation to patients in a resort-style environment. The Club Villages has been successful since its opening, achieving full utilization within less than six months of operation. It recently added eight additional beds, resulting in a total bed complement of 68 beds, through a statutory exemption for highly utilized nursing home providers. The Club Villages was awarded the LTC & Senior Living LINK Spirit of Innovation Award, which recognizes facilities with innovative and inspirational designs. As of the final hearing, Greystone had not made a formal decision on site selection for the proposed Lakeland Oaks project. However, the evidence at hearing showed that Greystone plans to construct the proposed Lakeland Oaks facility in Polk County at one of four potential sites located near the I-4 interstate and major roadways for easy accessibility in an area with a high concentration of residents age 65 and older. The potential sites are in close proximity to the existing acute care hospitals in Polk County, which, from a health planning perspective, would promote a coordination of care. Given the number of available potential sites, it is not expected that Greystone will have difficulty securing a location for the proposed Lakeland Oaks project. Eighth Florida Living Options Eighth Florida’s CON Application No. 10303 proposes to establish a 120-bed SNF next to Hawthorne Lakeland, Florida Living Options’ existing assisted living facility in Polk County. The proposed facility will consist of two 60-bed pods, consisting of private and semi-private rooms. If approved, Eighth Florida’s proposed SNF will be part of a campus known as Hawthorne Village. In addition to the proposed SNF and Hawthorne Lakeland, Eighth Florida affiliates also plan to construct and operate a second assisted living facility and an independent living facility on the Hawthorne Village campus. An important part of Florida Living Options’ business model is to provide skilled nursing, assisted living, and independent living services on the same campus. By providing different levels of care on the same campus, it is envisioned that residents of Florida Living Options’ facilities can transition among the facilities as their care needs change. Eighth Florida plans to model its proposed skilled nursing facility on Hawthorne Village of Sarasota (Hawthorne- Sarasota), which opened in January 2013. Compared to Greystone’s The Club Villages, Hawthorne-Sarasota had a slow ramp up and only achieved 85 percent utilization after 24 months of operation. The Agency’s Preliminary Decision On February 23, 2015, in Volume 41, Number 36 of the Florida Administrative Record, the Agency for Health Care Administration (AHCA) announced its intent to award 83 of the beds identified to be needed in Polk County to other applicants not involved in this hearing; to approve the application of Lakeland Oaks for CON 10309 for 120 beds; and to deny the application of Eighth Florida for CON 10303 for 120 beds. Statutory and Rule Review Criteria The statutory review criteria for reviewing CON Applications for new nursing homes are found in section 408.035, Florida Statutes, and Florida Administrative Code Rule 59C- 1.036.1/ Each statutory and rule criterion is addressed below. Section 408.035(1)(a): The need for the health care facilities and health services being proposed There is a need for additional community nursing home beds in Nursing Home Subdistrict 6-5, Polk County. Both Lakeland Oaks and Eighth Florida’s CON applications seek to fulfill a portion of the published need for additional beds in Polk County. In addition to the published fixed-need pool, both Lakeland Oaks and Eighth Florida have stipulated to the need and performed their own needs assessment that verified the need for additional community nursing home beds in Nursing Home Subdistrict 6-5, Polk County. At present, Polk County has 24.7 nursing home beds per 1,000 residents. Even with the addition of 203 beds as projected by the fixed-need pool, population growth will cause Polk County’s bed ratio to decline to only 23.6 beds per 1,000 residents by the end of the planning horizon. Accordingly, there is a need for additional community nursing home beds in Polk County. Polk County has a large, fast growing elderly population. According to population data published by AHCA, from 2010 to 2014, the 65 and older population in Polk County grew by nine percent, which exceeded the statewide growth rate of six percent. For the time period 2014 to 2017, the 65+ population in Polk County is expected to grow at an even faster rate of 10 percent, which is substantial. Section 408.035(1)(b): The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant Polk County currently has twenty-four (24) nursing home facilities with 2,945 licensed beds. Polk County’s existing nursing home beds are highly utilized. For the 12-month period ending June 2014, Polk County’s existing nursing home beds had a total average occupancy rate of 90.29 percent. That occupancy rate is higher than the national rate and Nursing Home District 6’s average occupancy rate as a whole. At such high utilization, Polk County’s existing nursing home beds are not sufficiently available to Polk County residents. Further, Polk County’s existing nursing home beds are not adequate to meet the projected increase in demand for skilled nursing services in Polk County over the planning horizon. Eighth Florida proposes to locate its skilled nursing facility in Zip Code 33813, co-located with Florida Living Option’s existing assisted living facility. The need for additional community nursing beds in Polk County, however, is countywide and not specific to a particular zip code or assisted living facility. In contrast, Lakeland Oaks’ proposed project is located and designed to address the needs of Polk County residents as a whole with access designed to locate near a major hospital, and, as such, will better ensure access to short-term rehabilitation and long-term care services in Sub-district 6-5. Section 408.035(1)(c): The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care Both applicants go to great lengths to provide and improve their quality of care. Both applicants propose to use an electronic health record (EHR) system called Point Click Care (PCC). All of Florida Living Options’ facilities currently use PCC. Eighteen (18) of Greystones facilities use PCC, and, by the end of 2016, all Greystone facilities will use PCC. In addition to PCC, both Greystone and Florida Living Options use “Casamba,” a rehab-specific electronic medical record that enables the facilities to maintain electronic plans of care and track patients’ progress in real-time throughout their stay. Greystone and Florida Living Options have implemented Quality Assurance Performance Improvement (QAPI) plans in their facilities. The QAPI program is a rigorous program for the improvement of quality of care and overall performance. It addresses the full range of services offered by a nursing home and is designed to promote safety and high quality with all clinical interventions while emphasizing autonomy and choice in daily life for residents. A QAPI plan is now mandated for use in all nursing homes. Both Greystone and Florida Living Options initiated the QAPI program in their facilities before mandated to do so. Both Greystone and Florida Living Option have developed a range of policies and programs designed to promote quality of care in their respective facilities. Greystone, for example, develops “Centers of Excellence” within its facilities. A Center of Excellence has specialized expertise in treating patients with certain conditions such as stroke, pulmonary, cardiac, or orthopedics. Greystone has developed Centers of Excellence that relate to short-term rehabilitation and therapy, and partners with health systems to develop initiatives to reduce hospital readmissions. In addition to Centers of Excellence, Greystone develops other specialized programs in its facilities tailored towards common diagnoses of patients discharged from area hospitals. All Greystone facilities have an internal Risk Management/Quality Assurance program overseen by a committee that includes the medical director of each SNF. The committee meets on a monthly basis to assess resident care and facility practices as well as to develop, implement, and monitor plans of action. Greystone also routinely conducts on-site mock surveys of its facilities to ensure that they are in compliance with all federal and state laws and regulations. Greystone employs a variety of organization-specific quality improvement policies and programs, including the Believe Balance Assessment Tool, the Operation Make a Difference Policy, the Care Line Policy, and the Culture of Care Program, to promote quality of care within its facilities. The Believe Balance Assessment Tool is a scorecard that enables facilities to monitor their performance with respect to such criteria as patient satisfaction and clinical care. The Operation Make a Difference Policy is intended to help Greystone facilities identify opportunities for improvement and implement positive change to improve the facilities’ quality of care and patient well-being. Greystone’s Care Line is a toll-free number that is staffed 24 hours a day and allows Greystone to quickly address resident and/or family member concerns. Greystone’s Culture of Care program is designed to ensure that Greystone patients receive patient-centered care that meets their individual needs. Greystone also provides voluntary patient satisfaction surveys to its short-term rehabilitation patients upon discharge. For the period December 2014 to July 31, 2015, 92 percent of former residents indicated that they would recommend a Greystone facility to patients in need of short-term rehabilitation care. In sum, Greystone has developed strategies that help its facilities provide quality care. Florida Living Options is also working constantly to improve the quality of care in its facilities. Personnel in its facilities hold regular meetings with their hospital partners to track and reduce readmissions and work with hospitals to develop protocols for dealing with the diagnoses that result in most readmissions. Florida Living Options develops particular protocols for treating conditions that it sees and treats regularly in its nursing homes. Internally, they hold daily quality assurance meetings to discuss recent developments and immediate resident needs, and hold weekly “at-risk” meetings to evaluate particular cases and assure that the residents are being treated in the most appropriate manner. Florida Living Options’ facilities include physician treatment rooms in their nursing homes, which encourage physicians to come to the nursing home more often and to examine patients regularly. In addition, Florida Living Options has Advanced Registered Nurse Practitioners in each of its buildings to provide enhanced nursing services as directed by the doctor. In order to provide for each resident’s specific needs, residents in Florida Living Options’ facilities are fully evaluated and an individual care plan is prepared immediately upon admission, together with a discharge plan that identifies anticipated discharge so that care can best prepare residents for that event. Finally, Florida Living Options continues to follow a discharged resident to confirm that they are doing well and access any continuing needs. Both applicants propose rehabilitative facilities and equipment for its residents. Eighth Florida proposes to equip its facility with state of the art HUR equipment with the capability to transmit patient performance directly to the Casamba electronic records program. The equipment can be used for strength conditioning, transfer improvement, and balance improvement, among other things. Florida Living Options has developed specific protocols for treating rehabilitative conditions. Eighth Florida’s therapy gym will include two types of “zero G” devices: ceiling track and hydro track. These devices allow persons who are not weight bearing (or who are partially weight bearing) to develop strength and balance without having to put all of their weight on their legs. Two additional specific pieces of equipment proposed for Eighth Florida include a VitaStim device that provides electrical stimulation that helps a person relearn how to swallow, and a device called Game Ready. Game Ready is popular with football trainers and orthopedic patients that use ice and pressure to reduce swelling and pain around elbow and knee joint replacement sites. Greystone outfits the gyms in its skilled nursing facilities with a variety of rehab equipment, including high-low tables, mats, hand weights, leg weights, and modern strengthening machines. In addition, many Greystone SNFs have additional high-end, state-of-the-art equipment such as the AlterG and Biodex. The AlterG is an anti-gravity treadmill that enables patients with weight-bearing restrictions to use their muscles, preventing disuse atrophy. A Biodex is used for balance re-training. If approved, Lakeland Oaks proposes to have separate therapy gyms for its short-term rehabilitation and long-term care programs. By having two therapy gyms, Lakeland Oaks would be able to offer therapy services tailored to both patient populations’ needs. In contrast, Eighth Florida proposes to have one centralized therapy gym for its entire facility. Although quality may be measured by many metrics, the five-star rating system published by the Centers for Medicare and Medicaid Services (CMS) has become the most commonly used measure of quality among nursing homes. CMS is the federal agency that oversees the Medicare and Medicaid programs. CMS developed the five-star rating system for nursing homes in 2008. The ratings are scaled on a statewide basis and provide a mechanism to compare nursing homes within a state. Only 10 percent of nursing homes in a state receive a five-star rating. Seventy percent receive a two through four-star rating. The bottom 20 percent receives a one-star rating. A nursing home’s score is derived from a variety of criteria, including the results of its health inspection surveys, staffing data, and quality measure scores. A nursing home’s star rating is available on the CMS Nursing Home Compare website. As of July 2015, Greystone’s average star rating for its Florida facilities was 3.3 stars, which is above average. For the same time frame, Eighth Florida’s average rating was 2.6 stars or slightly below average. Further, several Greystone facilities, including The Club Villages, received five-star ratings. Greystone has also received other quality-related awards. In 2015, seven skilled nursing facilities operated by Greystone in Florida received the American Health Care Association National Quality Award Program Bronze Award. The Bronze Award is awarded to SNFs that have demonstrated their commitment to quality improvement. In addition, Greenbriar Rehabilitation and Nursing Center, a Greystone facility located in Bradenton, Florida, was awarded the Silver Award in recognition of its good performance outcomes. In contrast, only one Florida Living Options’ skilled nursing facility has received the Bronze Award. Florida Living Options explained that it decided not to pursue additional bronze awards believing that these awards reflect more of a paperwork compliance than an actual measure of quality. The greater number of awards received by Greystone, however, has not been ignored. Section 408.035(1)(d): The availability of resources, including health personnel, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation Lakeland Oaks’ total project costs, as reflected in Schedule 1 of its CON application, are $22,877,084. The total project costs are based upon a detailed budget and workpapers underlying the numbers contained in the financial schedules to Lakeland Oaks’ CON application. Because of its size, Greystone is able to purchase equipment at a lower cost than other smaller providers. The project costs include $1.2 million for equipment. The equipment list is based upon consultation with Greystone’s purchasing department and identification of what items are needed, along with the cost of those items. The project costs set forth in Lakeland Oaks’ Schedule 1 are reasonable and appropriate. Schedule 2 of Lakeland Oaks’ CON application sets forth an accurate and reasonable listing of Lakeland Oaks’ capital projects (i.e., only the proposed Lakeland Oaks SNF). Schedule 3 of Lakeland Oaks’ CON application identifies the source of project funds, and reflects the two sources included in Schedule 2: cash-on-hand and non-related company financing. Based on the audit of the parent organization of Lakeland Oaks, Greystone has a large amount of cash-on-hand, totaling $21,972,271. This greatly exceeds the projected $4,575,414 cash-on-hand needed for the project. With respect to non-related company financing, Lakeland Oaks included a letter from The Private Bank, an outside lender that previously has worked with Greystone in the financing of its skilled nursing facility projects. The letter indicates the bank’s interest in funding the Lakeland Oaks project. Greystone previously has obtained approximately six mortgages from this outside lender to acquire properties and develop projects. The lender has never declined to finance a project proposed by Greystone. The lender typically funds between 75 and 80 percent of the cost of a project. Lakeland Oaks will be able to obtain the necessary outside financing to fund the remainder of the cost of the Lakeland Oaks project. Lakeland Oaks’ projected staffing for its facility is set forth on Schedule 6A of its CON application. In projecting its staffing, Greystone considered its other skilled nursing facilities that are comparable in size to Lakeland Oaks and the projected payor mix of Lakeland Oaks. Facilities with higher Medicare populations, such as the proposed Lakeland Oaks facility, generally require higher levels of staffing in light of the acuity of Medicare patients recently discharged from hospitals. In addition, Medicare patients often require physical therapy services. Lakeland Oaks specifically considered the higher resource utilization required by Medicare patients in developing its projected staffing. Additionally, Lakeland Oaks considered the needs of managed care patients and long-term Medicaid patients in connection with its projected staffing. To calculate the projected wages, Lakeland Oaks considered the actual wages paid at comparable Greystone facilities, adjusted those wages using a Medicare wage index that accounted for inflation, and utilized the wage index applicable to Polk County facilities. The projected staffing, and the annual salaries associated with staffing the facility, are reasonable and appropriate. Lakeland Oaks will be able to staff the facility at the projected salaries. While Florida Living Options explained its recruitment program and generous benefits package to attract qualified employees, its proposed funding is unconvincing. Schedule 3 of Eighth Florida’s CON application shows that Eighth Florida proposes to fund its project with $250,000 cash-on-hand and $24,452,400 in related company financing. Schedule 3 does not reflect any non-related company financing. The CON application requires an applicant to attach proof of the financial strength to lend in the form of audited financial statements. The only audited financial statement Eighth Florida included in its application is the financial statement of the applicant entity, which reflects only $250,000 cash-on-hand. Eighth Florida omitted the audited financial statements of any related entity that would reflect the ability to fund the approximately $24 million to be obtained from the related party. As a result, Eighth Florida failed to prove its ability to fund the project, and the project does not appear to be financially feasible in the short term. While there was a letter within its application discussing the possibility of outside financing, Eighth Florida’s CON application is premised upon funding by affiliate reserves. Indeed, Schedule 1, lines 32-41, indicates that information pertaining to outside financing is inapplicable because the project is 100 percent funded by affiliate reserves and no fees or interest charges are anticipated. If Eighth Florida had proposed outside financing, it would have had to complete those lines of the application. Section 408.035(1)(e): The extent to which the proposed services will enhance access to health care for residents of the service district While both applicants argue that their proposed projects will improve access to health care for residents of Subdistrict 6-5, Lakeland Oaks’ proposed project will better enhance access. Eighth Florida’s zip code analysis and focus on serving residents of Hawthorne Village is myopic when compared to Lakeland Oaks’ proposed project designed to provide access to Polk County as a whole. Section 408.035(1)(f): The immediate and long-term financial feasibility of the proposal Schedule 3 of Lakeland Oaks’ CON application sets forth an accurate and reasonable source of funds to develop the project. As previously explained, Greystone is financially capable of funding the project, partially from cash-on-hand and partially from outside financing. The project is financially feasible in the short term. Lakeland Oaks’ projected utilization of its skilled nursing facility is reflected on Schedule 5 of its CON application. The projected utilization is reasonable and achievable. Greystone has been able to achieve a high rate of utilization at The Club Villages in a short period of time. Greystone also has a process to inform hospitals and physicians of its skilled nursing services, including the placement of clinical liaisons in hospitals and physician offices. Greystone also enjoys a good reputation that serves to attract patients, including specifically Medicare patients, to its facilities. Finally, the Lakeland Oaks facility will house long-term care residents, which generally are easier to attract to a facility than patients in need of short-term rehabilitation. With regard to long term financial feasibility issues, Schedule 7 of Lakeland Oaks’ CON application sets forth revenues based on patient days and an assumed payor mix. The payor mix assumptions and projected revenues are accurate and reasonable. The assumed payor mix is based on the experience of other Greystone facilities. Specifically, Lakeland Oaks projects in its second year of operation 7.96 percent self-pay patient days; 29.2 percent Medicaid days; 41.59 percent Medicare Part A days; 15.04 percent “Other Managed Care” days. Medicare Advantage, or Medicare Part C, accounts for 90 percent of the “Other Managed Care” days. Finally, Lakeland Oaks projects 6.19 percent in “Other Payer” patient days, including VA and hospice patients. Based on Greystone’s experience at other, similar facilities, the forecast is reasonable. Schedule 8 of Lakeland Oaks’ CON application sets forth its projected income statement for the facility, including total revenues and expenses. For year two of operations, Lakeland Oaks will have a projected total net income of $1,997,665. This is an accurate and reasonable projection, and the project will be financially feasible in both the short-term and long-term. With regard to the reasonableness of Lakeland Oaks’ fill rate, Greystone facilities have experienced an average occupancy in excess of 91 percent for the years 2010-2013. Greystone has demonstrated the ability to obtain a 94 percent occupancy level in many of its facilities, and it is reasonable to project that it will be able to achieve the 94-percent occupancy projected for the Lakeland Oaks facility within two years. Eighth Florida’s expert, Sharon Gordon-Girvin, agreed that Lakeland Oaks’ projected 94-percent occupancy is achievable. Lakeland Oaks’ projected Medicare census is in line with the Medicare population served by Greystone at its other facilities, including a 150-bed home in Miami-Dade County (39 percent Medicare), a facility in Marion County (42 percent Medicare) and The Club Villages (83 percent Medicare). Eighth Florida’s own expert, Ms. Gordon-Girvin, prepared three CON applications for Greystone that reflected substantial levels of Medicare utilization and did not object to the projected Medicare population. Additionally, CMS data shows that Polk County has a high number of Medicare beneficiaries in comparison to the entire State of Florida, with 119,643 Medicare beneficiaries. Polk County is ranked in the top 10 counties in Florida in terms of the number of Medicare Part A beneficiaries. Finally, a facility in Polk County, Spring Lake, which serves a substantial number of Medicare patients in need of rehabilitation services, experiences a Medicare utilization rate of 64 percent. In sum, Lakeland Oaks’ projected Medicare utilization is reasonable and achievable. Lakeland Oaks projected $150,000 for property taxes as part of its CON application. While Eighth Florida’s financial expert, Steve Jones, opined that Lakeland Oaks’ projected property taxes were understated, his analysis computed the property tax based on certain components of Lakeland Oaks’ projected project costs. Property taxes, however, are based on an assessed value of property, not the costs to construct a facility. Lakeland Oaks’ financial expert, Mr. Swartz, examined the 2015 property taxes at Greystone’s other facilities. The highest property tax rate for any of the Greystone facilities, when inflated forward one year, is $149,381.62. This is consistent with Lakeland Oaks’ projected property taxes of $150,000. Thus, the projected property taxes as set forth in the application are reasonable and accurate. In its CON application, Eighth Florida projected a year one loss of $1,646,400 and a year two profit of $502,945. However, Eighth Florida’s CON application reflects erroneous financial projections and financial deficiencies, some of which were acknowledged by Eighth Florida’s financial expert, Mr. Jones. First, Eighth Florida’s projected Medicaid rate is erroneous. Eighth Florida assumed an incorrect occupancy rate in calculating its Fair Rental Value Rate (FRVS) rate, which is the property component of the Medicaid rate paid by the State of Florida. Specifically, Eighth Florida assumed a 75 percent occupancy in year two of its operation, while the Medicaid allowable rate is 90 percent occupancy in year two. Eighth Florida’s financial expert, Steve Jones, acknowledged the error in the assumed Medicaid rate related to the occupancy factor. In addition, Eighth Florida will not qualify for principal and interest in its FRVS calculation. A provider must have 60 percent mortgage debt in order to receive principal and interest in its FRVS computation. Eighth Florida does not meet the 60 percent test because it relies upon related-party financing, which is not considered a mortgage. Further, Eighth Florida utilized an erroneous interest rate. Because it does not project any outside financing, nor a mortgage, it should have used the Chase Prime Rate, which is about 2.25 percent less than what Eighth Florida assumed in it Medicaid rate calculations. These errors are material in that they result in approximately $135,000 in overstated Medicaid revenue and overstated net income for year two, during which Eighth Florida’s financial schedules project a net profit of approximately $500,000. In response to the opinion that Eighth Florida would not be entitled to principal and interest in its assumed FRVS rate, Mr. Jones maintained that the financing of the project would qualify for treatment as a mortgage, even though the application is premised upon related-party financing. However, AHCA’s rate setting department concluded that borrowing from a related party against reserves, as proposed by Eighth Florida, cannot be considered a mortgage. Mr. Jones conceded that he had never seen AHCA recognize affiliated entity debt as a mortgage. Considering the facts and opinions offered at the final hearing, it is concluded that related party borrowing cannot be treated as a mortgage. Moreover, Schedule 1 of Eighth Florida’s CON application did not include any construction period interest. Lakeland Oaks’ healthcare financial expert, Ronald Swartz reasonably estimated that approximately $700,000-$750,000 in construction period interest was omitted from Eighth Florida’s project costs. As a result, Eighth Florida would require more cash-on-hand to fund the extra costs. This, in turn, affects the income statement, resulting in understated expenses and overstated net income. Mr. Jones acknowledged that construction period interest is normally included. In this application, he did not include that item based upon a cost/benefit analysis and his conclusion that the inclusion of construction period interest would not provide “useful” financial information. Based upon Generally Accepted Accounting Principles and relevant financial standards pertaining to the capitalization of interest, whether construction period interest should be included in financial projections generally turns on concepts of time and materiality. Here, the construction project will take nearly two years, and construction period interest will total approximately $700,000 to $750,000. Thus, construction period interest is material and the interest charge should have been included in Eighth Florida’s financial schedules. Next, Eighth Florida projected a utilization or “fill” rate that is higher than the fill rate Florida Living Options was able to achieve when it opened Hawthorne-Sarasota. A fill rate describes how quickly a facility reaches an anticipated occupancy level. It is appropriate to consider Florida Living Options’ prior history of filling its new facilities. With regard to Florida Living Options’ experience at Hawthorne- Sarasota, that facility reached 85 percent occupancy by the end of its second year of operation. The Sarasota facility had approximately a 35 percent occupancy level at the end of year one, which translates to a first year average occupancy of 16 or 17 percent. At the beginning of year two, it experienced approximately 43 percent occupancy. In contrast, Eighth Florida’s CON application projects an 89 percent occupancy level by month 11. Based on Florida Living Options’ experience in Sarasota, the projection is unreasonable. If Eighth Florida’s proposed facility fills at the same rate as the Sarasota facility, year two of Eighth Florida’s operation would result in a larger financial loss and a greater need for working capital. Given that, Eight Florida’s year two projected net income would actually become a net loss, and additional working capital would be needed. While Eighth Florida’s expert, Mr. Jones, sought to distinguish the Sarasota market from the Polk County market, nonetheless, it is relevant to examine the occupancy level Florida Living Options was able to achieve in connection with the opening of a new facility in the Sarasota market. The financial feasibility of a skilled nursing facility is an important consideration. Considering the issues surrounding Eighth Florida’s fill rate at the end of year one, construction period interest, and the erroneous Medicaid rate, it appears likely that Eighth Florida would experience a year two net loss, bringing into question the long-term financial feasibility of Eighth Florida’s CON application. Section 408.035(1)(g): The extent to which the proposal will foster competition that promotes quality and cost-effectiveness It stands to reason that approval of either application will foster competition due to the fact that additional nursing home beds with new amenities are proposed to be added in Polk County. The extent of that competition, however, is not evident, and the undersigned agrees with the determination of AHCA on page 93 of its State Agency Action Report submitted in this proceeding that “These projects are not likely to have a material impact on competition to promote quality and cost-effectiveness.” Section 408.035(1)(h): The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction The Florida Building Code (Building Code) governs the design and construction of skilled nursing facilities. Under the Building Code, a skilled nursing facility may be designed based on either an “institutional” design model or a “household” design model. To obtain AHCA’s approval of a proposed SNF, AHCA requires parties to designate which design model has been selected. An institutional design model involves centralized services. By contrast, the household design model involves decentralized services contained within a “neighborhood” or unit. Section 420.3.2.2 of the Building Code regulates the household design model, and requires that dining activity in social areas be decentralized and included within the resident household. Section 420.3.2.2.1 further provides that “each resident household (unit) shall be limited to a maximum of 20 residents.” Additionally, section 420.3.2.2.2 requires that two individual households be grouped into a distinct neighborhood with a maximum of 40 residents who may share the required residential core areas. Lakeland Oaks’ architectural expert, Bo Russ, and his firm, Architectural Concepts, created the schematic design used in Lakeland Oaks’ CON application. In addition, Mr. Russ and Architectural Concepts provided cost estimates, systems descriptions, and the construction timeline for the project. Architectural Concepts has worked with Greystone in the development of other skilled nursing facilities in Florida, including the design and construction of The Club Villages, The Club at Ocala, and The Club at Kendall. The design of The Club Villages is based on a hospitality model (i.e., the resident-centered culture change model). The social and dining areas of The Club Villages are located within individual neighborhoods. Each neighborhood has a private dining room. Patient rooms surround the dining area. The Club Villages includes a Bistro Restaurant located at the center of the facility for family members and guests. The Club Villages also has space for the provision of rehabilitation services, including two large gyms within the physical therapy suite. The facility has skylights throughout the structure and other features to retain residential elements. In preparing the architectural design for Lakeland Oaks’ proposal, Architectural Concepts incorporated certain aspects of the design of The Club Villages. The Lakeland Oaks design is based on the “institutional model,” but with certain embellishments intended to give the facility a “household,” residential feel. The proposed Lakeland Oaks facility is approximately 84,000 square feet. The facility has 10-foot ceilings, a residential-oriented interior design, residential lighting, residential furniture, a large porte cochere, a lobby area similar to The Club Villages, a Bistro, a central dining area within the community that is divided into four dining rooms with unique interior vernacular, a movie theater, a satellite therapy gym, offices for staffing, a separate Activities of Daily Living suite, a doctors lounge, and three nursing units. With regard to physical therapy services, the proposed Lakeland Oaks facility will include two large gyms at the center of the therapy suite, a private outpatient therapy entrance, a large classroom, and space for other ancillary services. The design will allow for a concierge approach to therapy to treat patients in need of those services. The proposed Lakeland Oaks facility is reasonably and appropriately designed for use as a skilled nursing facility, and promotes high quality of care. In developing the design of the facility, Mr. Russ considered the fact that Lakeland Oaks proposes to offer both short-term and long-term care. Greystone has developed two similar skilled nursing facilities, The Club at Kendall, a 150-bed skilled nursing facility, and The Club at Ocala, a 154-bed facility, both of which are similar in design to Lakeland Oaks. Greystone has received AHCA approval of the design and construction for both of those facilities. Lakeland Oaks’ proposed construction costs are $17,289,054, or $185 per square foot. The estimated construction costs are based on similar projects, including The Club at Ocala at $178 per square foot. The construction costs are reasonable and appropriate. The architectural plan, design, and features presented by Lakeland Oaks satisfy the architectural criteria applicable to skilled nursing facilities in Florida. The facility complies with all applicable construction, design, and life safety code requirements. Lakeland Oaks also presented a reasonable timeline for completion of the project. The timeline is based on Greystone’s prior experience in constructing similar skilled nursing facilities. Mr. Russ reviewed Eighth Florida’s architectural plans and schematics for conformity with applicable criteria. Eighth Florida’s architectural plans and schematics were prepared by Bessolo Design Group (Bessolo Group). Because of design flaws inconsistent with the Building Code, the architectural plans and design proposed by Eighth Florida and Bessolo Group should not be approved by AHCA. Eighth Florida’s proposed design will be reviewed by AHCA based on the provisions governing the institutional design model. The design fails to meet certain distance requirements found in the Building Code provisions governing an institutional design. Specifically, Florida Building Code section 420.3.2.1.2 (now renumbered as Building Code section 450.3.2.1.2) provides that the travel distance from the entrance door of the farthest patient room to the nurse’s station cannot exceed 150 feet. In addition, the distance from a patient room to a clean utility and soiled utility room cannot exceed 150 feet. Based on the schematic plan presented by Eighth Florida and Bessolo Group, the distance from the most remote patient room to the nurse’s station well exceeds 150 feet. In addition, the distance from the most remote patient room to the soiled/utility rooms well exceeds 150 feet. These flaws cannot be remedied without substantial design changes. In addition, the Eighth Florida/Bessolo Group design includes deficiencies related to smoke compartments, nourishment stations, and other items. These more minor flaws can be remedied without substantial changes. However, as to the 150-foot limit, Eighth Florida’s non-compliance makes the design a failed model. The facility cannot be approved in its current design. In order to be approvable, the facility would need to undergo a major redesign, including a change in the size and configuration of the building. This, in turn, would impact all of the financial assumptions contained in Eighth Florida’s CON application. In response to Mr. Russ’ opinions, Eighth Florida’s architectural expert, Kevin Bessolo, contended that the deficiencies related to the 150-feet distances from the patient room to the nurses station and soiled/clean utility areas were not fatal because the plan was based upon the “household model.” Mr. Besselo acknowledged that, if the design is considered to be “institutional,” then the travel distances would exceed the 150-foot distance requirements. Mr. Besselo also acknowledged that a skilled nursing facility can either be an institutional design model or a household design model, but not both. Mr. Bessolo further acknowledged that his position that the plan is approvable is contingent upon the design being considered under the household design model in accordance with the Building Code. Mr. Bessolo disagreed with the criticism offered by Mr. Russ regarding the 150-feet distance requirements because he contended that his design presents a household model. Eighth Florida’s schematic design, however, does not comply with the Building Code’s requirements for a household design model. Eighth Florida’s proposed building is divided into 30-bed neighborhoods that exceed the Building Code’s 20-bed maximum for the household design. In addition, Eighth Florida’s plan presents three households sharing a central services area. Finally, the dining area presented in the Eighth Florida plan is centralized, rather than decentralized as required for the household design model. Because the proposal does not qualify as a household model, AHCA should review it under the institutional plan provisions. In turn, Mr. Bessolo offered criticisms of Lakeland Oaks’ proposed architectural plan. These included issues related to the distance to soiled utility exceeding 150 feet, resident storage areas, central bathing area, no emergency food storage, smoke compartment issues, secondary exit issues, and the planned movie theater. However, unlike Eighth Florida’s major deficiencies related to the 150-foot distant limits from the nurse’s station and from the clean and soiled utility rooms, the criticisms offered by Mr. Bessolo are easily rectifiable by Lakeland Oaks without substantial change. I. Section 408.035(1)(i): The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent Greystone has a strong history of serving Medicaid patients in Florida. On a company-wide basis, 53.65 percent of all patient days in Greystone SNFs were provided to Medicaid patients during calendar year 2014. Lakeland Oaks plans to treat Medicaid patients at its proposed facility. In its second year of operation, Lakeland Oaks projects that almost 30 percent of its patient days will be Medicaid days. Additionally, if “dual eligibles” (i.e., patients with Medicare as a primary payer but also eligible for Medicaid) are taken into account, Lakeland Oaks’ provision of services to Medicaid patients will be even higher. Lakeland Oaks’ payor mix assumptions were based on Greystone’s actual experience at comparable SNFs in Florida and are reasonable. Eighth Florida projects in its second year of operation that approximately 40 percent of its patient days will be Medicaid days. As previously explained, that projection is questionable. The evidence at hearing showed that Hawthorne- Sarasota, the facility upon which Eighth Florida’s proposal is based, had only eight percent Medicaid utilization after one and a half years of operation. IV. Factual Summary The facts set forth above demonstrate that Greystone has proposed a well-funded, financially feasible, well-designed skilled nursing facility that will improve Polk County access to short term and long term skilled nursing care for residents of Polk County. Greystone has demonstrated a proven record of providing high quality of care and the ability to assure quality of care for the Lakeland Oaks proposal. In contrast, Eighth Florida’s application was largely focused on improving access to those services within a certain zip code and for residents of the Hawthorne Village community and not residents of Polk County as a whole. Greystone, Lakeland Oaks’ parent company, has a long, well-established history of providing high quality care at over two dozen skilled nursing facilities in Florida. On the other hand, Florida Living Options, Eighth Florida’s parent, only operates three skilled nursing facilities in Florida and does not have as extensive of a track record in providing high quality care. Moreover, Greystone has a well-established history of providing skilled nursing services to a large volume of Medicaid patients. On a company-wide basis, over 50 percent of Greystone’s patient days consist of Medicaid patients. Conversely, Hawthorne-Sarasota, the facility upon which Eighth Florida’s proposed project is based, had only eight percent Medicaid utilization in its first year and a half of operation, calling into question Eighth Florida’s projection of 40 percent Medicaid utilization in its application. Further, Eighth Florida has proposed to build a nursing home with questionable inter-company financing and uncertain financial feasibility. Eighth Florida’s facility design does not meet code requirements and is unlikely to be approved as proposed without substantial changes. Considering both applications and the facts submitted at the final hearing as outlined above, it is found that Lakeland Oaks’ CON application, on balance, best satisfies the applicable statutory and rule criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order approving Lakeland Oaks NH, LLC’s CON Application No. 10309 and denying Eighth Florida Living Options, LLC’s CON Application No. 10303. DONE AND ENTERED this 22nd day of February, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2016.
