The Issue The issue for determination in this case is whether the agency's interpretation of its Title XIX, ICF/MR Reimbursement Plan is a rule, and if so, whether it is an invalid rule.
Findings Of Fact Friendly Village of Brevard, Inc. d/b/a Washington Square (herein, Washington Square) is an intermediate care facility for the mentally retarded (ICF/MR), located at 2055 North U.S. 1, in Titusville, Florida. Friendly Village of Orange, Inc., d/b/a Lake View Court (herein, Lake View Court), is also an ICF/MR located at 920 W. Kennedy Boulevard, in Eatonville, Florida. Both facilities are operated by Developmental Services, Inc. Both are certified ICF/MR's participating in the Florida Medicaid Program. The Department of Health and Rehabilitative Services (HRS) is the state agency responsible for overseeing the ICF/MR Medicaid Program. Representatives of HRS and Florida's ICF/MR industry began negotiations on a new state Medicaid reimbursement plan in 1982 and 1983. The participants in the negotiations sought to remove certain cost limitations and to insure that individual facilities would receive fair reimbursement of their allowable costs. The negotiations resulted in the Title XIX ICF/MR Reimbursement Plan dated July 1, 1984 (the 1984 Plan). The 1984 Plan provides, in part, for the establishment of reimbursement rates for new ICF/MR's entering the Florida Medicaid program after January 1, 1983. Under the plan, a provider is required, prior to beginning operations, to prepare a budgeted costs report projecting what it expects to spend in allowable costs during the next year for care to its residents. HRS reviews these budgets and establishes a per diem rate, using the budgeted costs and the number of patients, arriving at a per patient, per day rate. Each month, as services are provided, the ICF/MR bills the state Medicaid program for the number of patient days times the per diem. During the period in question, cost settlement occurred at the conclusion of the budgeted period. The provider filed his cost report detailing what was actually spent in allowable costs, HRS compared that amount with the amount budgeted and settled with the provider. Washington Square entered the Florida Medicaid program on January 19, 1983; Lake View Court entered the program in February 1983. Both facilities filed cost reports for periods ending on February 29, 1984. Sometimes cost settlements occur quickly through a desk review. Other times, as here, audits are performed and settlement may occur much later. The audits of Washington Square and Lake View Court were conducted in 1985 for their initial cost reports ending February 1984. The audits were issued in April and May 1988. Those audits state that prior to July 1, 1984, the Florida Medicaid Program recognized only those interim rate settlements resulting in an overpayment. This is an interpretation of the 1984 Plan which Petitioners dispute and which, in this case, Petitioners contend is an invalid rule. ICF/MR Reimbursement plans prior to July 1, 1984, had one-way cost settlement, which meant that if the provider as overpaid, the funds had to be returned to HRS; if the facility as underpaid, it did not receive additional reimbursement. The 1984 ICF/MR Plan was changed to allow two-way cost settlement, thus allowing an underpaid provider to recover its approved costs. Petitioners claim that a proper interpretation of the 1984 Plan, especially when read with the 1985 Plan, is that two-way cost settlement is retroactive to January 1983, for new providers entering the program after January 1, 1983. HRS disagrees with that interpretation and this issue is the subject of the consolidated case, #88-2938. HRS' interpretation means that Petitioners will not be reimbursed for underpayments received during their first reporting period. The 1984 Plan was adopted as a rule by incorporation, in Rule 10C- 7.49(4)(a)2. Florida Administrative Code.
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact Beginning on April 23, 2001, and at all times material to this case, the Petitioner was employed by the Hillsborough County Health Department as a Professional Engineer III, a position requiring state registration in accordance with Chapter 471, Florida Statutes (2001). The job announcement related to the Petitioner's employment states that the position "oversees" the drinking water program and engineering-related activities. The position was responsible for management of "Safe Drinking Water" permitting and compliance enforcement program entailing a variety of duties, including planning, organizing, and coordinating work assignments. According to organizational charts before and after the date of the reclassification of the position, the Professional Engineer III position had direct supervision of four employment positions, and indirect supervision of eight additional positions that reported to one of the Petitioner's direct employees. The position of Professional Engineer III includes a substantial amount of engineering review responsibilities, and is charged with direct supervision of the Safe Drinking Water Act program staff and Limited Use Drinking Water program staff. The position description categorized the job responsibilities as "regulatory," "supervising/training," "enforcement," "policies and procedures," "record keeping," "education," and "committees/other duties." Review of the specific duties indicates that the Petitioner's supervisory responsibilities were included within several of the categories. Included within the "regulatory" category was "[e]nsures staff conduct field inspections of public water systems. . . . Supervisor is responsible and accountable for field staff." Included within the "supervising/training" category were the following duties: Supervises Engineers to ensure all programs in the Safe Drinking Water Program are completed according to the agreement with DEP and the policies and procedures of the Department of Health. Supervises an Environmental Supervisor II to ensure that all programs in the Limited Use Drinking Water Program and Private Drinking Water Program are completed according to the F.S., F.A.C. and county regulations. Supervises staff review of engineer's plans. Supervises and reviews the preparation of non-compliance letters written by staff regarding enforcement actions. Provide training to new Health Department staff in all aspects of EHS at least once a year (standardized presentation). Perform field inspections (documented) with personnel on a quarterly basis to evaluate staff performance and for Quality Improvement (QI) in accordance with office policy. Telephone regulated facilities each quarter to determine customer satisfaction . . . in accordance with office policy. Develop training modules for specific program areas (public drinking water systems) and maintain them accurate and current. Provide those training modules to new EH staff and twice a year to existing EH staff. Assign staff to special work areas as necessary and perform field inspections (staff shortages, vacation/leave time, and natural disaster). Evaluate personnel's work, plan work load, special tasks to include efficiency. Included within the "enforcement" category were the following duties: Reviews appropriate enforcement activities generated by staff and assure timely progress of formal enforcement from compliance to enforcement. Ensures the time progress of enforcement cases by working closely with the compliance section of the Public Drinking Water Program in bringing non-compliant clients into enforcement. Follow up on violations of FAC and/or FS and ensure compliance is achieved or enforcement action is taken. Included within the "policies and procedures" category was the responsibility to "[r]eview daily activity reports and corresponding paperwork each day." The Petitioner was responsible for managing the daily workflow of the office. He planned, directed, and reviewed the work performed by his employees. The Petitioner was responsible for the evaluation of all employees under his direct supervision, including newly hired probationary employees. The Petitioner was responsible for review of the evaluations for employees for whom he had indirect supervisory duties, and he also provided his own independent evaluation of their performance. The Petitioner was responsible for the discipline of employees. At one point he had to counsel an employee who was consistently late to arrive for work. The Petitioner was also responsible for seeking qualified applicants for position openings. He was responsible for initiating the employment process. He chose the panel that interviewed applicants, designed the interview questions, participated in interviews, and made the final recommendation as to the person hired. He had the authority to decline to fill an open position if he deemed that the applicants lacked sufficient qualification. The Petitioner claims that the majority of his time was spent in review of permit applications and related engineering tasks. The evidence fails to support the assertion. The Petitioner's claim appears to essentially relate to a period of time subsequent to the July 1, 2001, reclassification of the position. During the time between his initial employment and the date of the position reclassification, the Petitioner was primarily a supervisory employee and had little, if any, permit review responsibilities. The office was fully staffed with other employees who were directly responsible for review of permit applications and related field reviews. In autumn of 2001, after the position was reclassified, the office began to lose employees, resulting in an increased workload for the remaining workers. At this point, the Petitioner began to undertake a substantial role in the actual review of permit applications in addition to his supervisory duties. Nonetheless, the Petitioner remained responsible for supervision of remaining employees. The Petitioner was also responsible for filling the vacant positions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Professional Engineer III" position held by Raymond Van Loon on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of April, 2004. COPIES FURNISHED: Stephen W. Foxwell, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Aaron J. Hilligas, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Boulevard Hyde Park Plaza, Suite 350 Tampa, Florida 33606 Jerry G. Traynham, Esquire Patterson & Traynham Post Office Box 4289 315 Beard Street Tallahassee, Florida 32315 William E. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are: 1) whether the Petitioner, Southport Ranch, LLC (Petitioner), is a substantially affected person with standing to challenge the Respondent, South Florida Water Management District’s (District) intent to issue Environmental Resource Permit (Mitigation Banking) Number 49-00007-M to the Respondents, D.R. Horton, Inc., and Osceola County (Applicants); and 2) the number of potential mitigation bank credits that the District should award to the Applicants.
Findings Of Fact The Parties The District is a government entity created pursuant to chapter 25270 of the 1949 Laws of Florida, and operates as a multi-purpose water management district. The District has the authority and duty to exercise regulatory jurisdiction over the Twin Oaks Mitigation Bank (the Project) under the provisions of part IV, chapter 373, Florida Statutes, and Titles 40E and 62 of the Florida Administrative Code. The Respondent, D.R. Horton, Inc. (D.R. Horton), is a Florida corporation and the owner of two of three parcels that comprise the Project. D.R. Horton is the largest homebuilder in the Unites States with a large full-time staff in Florida and around the country. The Respondent, Osceola County, is a political subdivision of the State of Florida and the owner of one of three parcels that comprise the Project. The Petitioner, Southport Ranch, LLC, is a Florida limited liability corporation that owns 7,000 acres of real property located within the Lake Tohopekaliga (Lake Toho), Lake Gentry, and Reedy Creek drainage basins in Osceola County. Petitioner’s Substantial Interests The real property owned and managed by the Petitioner is called Southport Ranch (Ranch). The Ranch straddles three drainage basins, which are sub-basins within the Kissimmee River Basin. A small portion of the Ranch touches Lake Toho and the eastern boundary of the Ranch extends to the centerline of the C-35 Canal. Water flows south from Lake Toho through the C-35 Canal and into Ranch property through culverts. Extensive wetland resources are located throughout the Ranch, including forested, freshwater, and herbaceous wetlands. The Ranch is populated by a wide array of aquatic and wetland dependent animal species, including several species that are listed as threatened or endangered by the state or federal government. The Petitioner is owned by a series of trusts established by George Andrew Kelley (Kelley) who passed away in 2014. Kelley was a fourth-generation cattle rancher. Gary Lee manages the Ranch operations and is also the trustee of the George Andrew Kelley Family Trust. Mr. Lee testified that the Petitioner’s primary management objective, consistent with the direction of Kelley prior to his death, is preservation and conservation. This includes preserving and protecting existing wetland habitat on the Ranch. Historically, the primary land use on the Ranch was cattle ranching and that activity continues on a portion of the Ranch property. The other land use is the Southport Ranch Mitigation Bank (SRMB), a wetland mitigation bank permitted by the District in 2010. The SRMB is operated by a separate company in partnership with the Petitioner, and they are co- permittees on the mitigation bank permit. Mr. Lee testified to certain concerns with the Project and the number of proposed mitigation credits. Mainly that, if the Project does not achieve success as a mitigation bank, it could be detrimental to existing wetlands, such as those on the Ranch, which support aquatic and avian species. In addition, there could be adverse regional impact in the form of a net loss of wetlands. Mr. Lee considers the Ranch to be a “very[,] very[,] very unique piece of property” and “we’re trying to save it.” The Petitioner’s expert, Carl Salafrio, testified that utilization of a mitigation credit or credits that do not completely offset the loss of wetland function caused by a permitted wetland impact within the Kissimmee River watershed or the three sub-basins in which the Ranch property is located, would adversely impact aquatic and wetland species present on the Ranch. The Project and Vicinity The Applicants propose to construct and operate the Project along the northeast side of Lake Toho in Osceola County. The Project consists of three mitigation areas (MA) with a total of 747.91 acres. MA1 is the northern parcel and comprises 202.94 acres that are currently drained by an off-site pump that pushes water to the west into Lake Toho. MA1 is bounded on the north by the Partin Canal, to the west by Kings Highway, and to the east by Neptune Road. D.R. Horton owns MA1. An existing conservation easement (CE) encompasses 45.26 acres of MA1. The CE is associated with the prior issuance of an Environmental Resource Permit (ERP) for Phase 1A of a residential development known as the Toho Preserve (now known as Kindred). MA2 is south of MA1 and the southwestern region of MA2 abuts the northeastern shore of Lake Toho. MA2 is bounded to the east by Macy Island Road. MA2 comprises 283.82 acres that are currently drained to the south by a pump into Lake Toho. MA2 is owned by D.R. Horton. MA3 is east of MA2 and comprises 261.15 acres that drain through a culvert under Macy Island Road into MA2 and south into Lake Toho. MA3 is owned by Osceola County and the County will be the sole user of the mitigation credits generated by MA3. MA3 is bounded on the east by the C-31 canal and to the south by a park owned by Osceola County. The service area for the mitigation bank consists of the Lake Toho, Reedy Creek, Lake Gentry, Lake Hart, Shingle Creek, Boggy Creek, Lake Hatchineha, and Lake Kissimmee drainage basins within the jurisdiction of the District. The service area also includes portions of the Southern St. Johns River basin, which is within the jurisdictional boundary of the Southwest Florida Water Management District, and additional areas within the boundaries of the St. Johns River Water Management District. The Project site was historically littoral areas of Lake Toho that were separated from the Lake by drainage modifications, such as those made in the 1950s by the Central and South Florida Flood Control Project. The drainage modifications included features, such as the C-31 Canal, the Partin Canal, dikes, ditches, pumps, culverts and roads. In particular, the large agricultural pumps at MA1 and MA2 drain the mitigation areas and pushes water into Lake Toho to maintain the acreages as pasture for cattle grazing. The Applicants propose to construct the Project through a combination of wetland restoration, wetland and upland enhancement, conservation easements, and implementation of hydrologic improvements. The Project will increase hydroperiods in targeted wetlands to mimic the historic hydrologic regime and restore natural sheet flow patterns that existed prior to the drainage modifications. Rainfall and runoff from adjacent developments will serve to hydrate the three mitigation areas. Successful restoration of the natural hydroperiods will promote the growth and maintenance of desired wetland vegetation communities in the mitigation bank. D.R. Horton will manage and operate the Project until it meets the success criteria documented in the permit. Once the Project achieves success, Osceola County will operate and maintain the Project in perpetuity. Osceola County has implemented an Environmental Land Conservation program (SAVE Ordinance) designed to acquire and manage, in perpetuity, conservation lands. Proposed Enhancement and Restoration The Project would restore the upland and wetland habitats historically a part of, and hydrologically connected to, Lake Toho. The mitigation activities will consist of various methods for the targeted community types. These include hydrologic enhancement and restoration, regrading wetland areas and ditches to match natural grades, prescriptive burning, elimination of nuisance and exotic plant species, and vegetation enhancement and restoration. The Project would eliminate incompatible land uses within the mitigation areas, such as cattle grazing, hay production, and sod farming. The Project would reestablish wetland community structures and functions similar to the natural, historic wetland communities within the mitigation service area. The target community types and required hydrologic enhancement were also identified by the Applicants’ expert, John Lesman. Mr. Lesman testified that he consulted resources, such as Ecosystems of Florida and the Florida Natural Areas Inventory. For example, portions of the upland pasture areas would be restored to slough marsh and wet prairie communities by increasing the elevation and duration of seasonal high water levels. Planting is proposed in upland enhancement areas because of a lack of viable seed source for natural recruitment of native upland species. For the wetland enhancement and restoration areas, existing wetland vegetation is a viable seed source to facilitate natural recruitment. Mr. Lesman testified that natural recruitment is a generally-accepted means to establish wetland plant species. The Petitioner’s expert, Beverly Birkitt, questioned whether more plantings should be required. However, if natural recruitment is not successful, the Applicants would conduct supplemental plantings in order to meet vegetation success criteria. The Project would utilize herbicidal and mechanical control of nuisance and exotic vegetation consistent with the Nuisance and Exotic Vegetation Control Plan. Prescribed burns are also used to control exotic and nuisance species in pyrogenic communities within mitigation banks. Ms. Birkitt opined that prescribed burns should not occur adjacent to existing and proposed residential development. However, prescribed burns are a common activity carried out by licensed professionals using methods established and approved by the Florida Forest Service. The Prescribed Burning Management Plan requires safeguards when there is a wildland-urban interface. Safeguards include permanent fire lines, educational outreach to adjacent residential communities, and local partnerships with local fire rescue agencies, the Florida Forest Service, and Osceola County staff. The Project’s mitigation activities would restore habitats for listed species, aquatic-dependent and wetland- dependent species, and a variety of other wildlife. Lake Toho and surrounding areas serve as a primary foraging and nesting refuge for the everglades snail kite. It is also habitat for various endangered and threatened species, such as the whooping crane, limpkin, snowy egret, white ibis, little blue heron, tricolored heron, and bald eagle. The Applicants modified the application to include a 25-foot buffer along specified portions of the perimeter areas of MA1, MA2 and MA3. Those specified portions have adjacent development or the potential for adjacent development, which is a risk for all mitigation banks. The Applicants also removed the acreage within the 25-foot buffer areas from consideration to generate mitigation credits. However, that acreage would still be enhanced or restored as part of the Project’s mitigation activities. A 25-foot buffer is not proposed for those areas that have existing physical buffers or legal restrictions that preclude future development. Proposed Hydrologic Improvements The Project encompasses numerous activities designed to restore hydrologic conditions at the mitigation areas including removal of certain drainage features and structures. Surface water from MA1 will flow through a broad crested weir, a series of pipes and a drop inlet with operable boards to the Partin Canal, which is directly connected to Lake Toho. The existing culvert under Kings Highway that currently allows MA1 to drain to the off-site pump would be plugged with concrete to allow hydroperiod restoration. The pump at the south end of MA2 that currently drains MA2 and MA3 would be removed and replaced with a broad crested weir, a series of pipes and a drop inlet with operable boards that will outfall to Lake Toho. The boards are light-weight aluminum and are easily installed or removed by a single individual. The weir structure would detain water in MA2 and MA3 causing re-hydration of these historic wetland systems. The installations of the control structures within MA1 and MA2 would reestablish the hydrologic connections between Lake Toho and MA1, MA2 and MA3. To properly assess and implement the hydrologic improvements, the Applicants developed a hydrologic model. The primary factors considered in order to model the proposed condition annual hydrograph were annual rainfall and evaporation from the water body areas. Sixteen years of average annual data for both rainfall and evaporation were obtained from the University of Florida – Institute of Food and Animal Sciences Department, Lake Alfred Experiment Station. The rainfall data was averaged to develop average daily rainfall totals for a hypothetical year. This rainfall data was entered into the Advanced ICPR model for generation of annual runoff hydrographs entering each of the on-site wetlands. Advanced ICPR is an industry standard model for stormwater management systems in large basins, routinely accepted by the District for permit applications. The water levels of Lake Toho are managed on a lake regulation schedule operated by the District. Lake Toho water levels influence hydrology in and around the Project site. The water levels of Lake Toho were factored into the Applicants’ hydrologic model. The Applicants used a 10-year average of water levels within Lake Toho. Surface water elevation data for Lake Toho was obtained from data provided by the District for the years 2001 through 2011. For the purpose of modeling the average annual conditions, the annual data was averaged with the 2004 data being excluded. The Petitioner’s expert engineer, Stuart Cullen, opined that the Lake Toho regulation schedule should have been considered instead of actual water levels. However, the evidence showed that the water levels frequently varied from the regulation schedule. Thus, the use of actual water levels within Lake Toho for modeling purposes yielded more accurate results. The Applicants’ model demonstrated post-development results using data for the existing conditions of the Project site. Mr. Cullen opined that the existing conditions used for this permit application should have been the “pumps off” scenario provided in the Conceptual ERP for the Kindred project because the District referenced the Kindred Conceptual ERP in the permit documents for this Project. However, Mr. Boyd, who was the engineer for the Kindred Conceptual ERP, testified that it included a pumps-off scenario only to show that even if the pumps failed, the Kindred development would not flood. This is a “worst case scenario” demonstration and is different than existing conditions, which are the conditions as they exist on the site today, not how they are permitted to exist in the future. Mr. Boyd explained that he listed the “pumps on” scenario as the existing condition because the off-site pump, which is not controlled by the Applicants, currently runs as needed to keep the property drained and completely dry. When the Applicants block the culvert connected to the off-site pump as part of the Project’s proposed activities, the pump will no longer affect the property. This is the “pumps off” scenario, which in this instance, only occurs post-development. Hydrologic modeling data and results demonstrated that water levels within the Project would mimic a traditional wet season/dry season fluctuation as opposed to the inverse hydroperiod of Lake Toho. The operable water control structures would be modified on a seasonal basis. In the dry season, the boards would be removed to lower the water levels, mimicking natural dry season water levels. Conversely, the boards would be in place during the wet season to raise the water levels in the wetlands, thereby creating natural wet season water levels. The model demonstrates that the system design would immediately provide the hydrologic enhancement necessary to meet the Applicants’ ecological goals. Uniform Mitigation Assessment Method The Uniform Mitigation Assessment Method (UMAM) provides a standardized wetland assessment methodology that may be applied across community types. UMAM is used to calculate the credits that may be awarded to a mitigation bank. UMAM involves a two-part analysis. Part I is a qualitative characterization of the property by assessment areas. An assessment area is all or part of a mitigation site that is sufficiently homogeneous in character or mitigation benefits to be assessed as a single unit. See Fla. Admin. Code R. 62-345.200(1). Part II utilizes the scoring criteria established under the rules to evaluate each assessment area’s “current” condition (prior to the mitigation) to its “with mitigation” condition. The resulting difference represents the improvement of ecological value or the ecological lift, referred to in the rule as the “delta.” See Fla. Admin. Code R. 62- 345.500. Ms. Birkitt agreed with almost all the Applicants’ “current” condition scores and also with all of the Applicants’ “with mitigation” condition scores related to upland enhancement. Ms. Birkitt focused on the “with mitigation” scores for wetland enhancement and wetland restoration. Ms. Birkitt testified that the ecological lift reflected by the UMAM numbers for the three wetland function indicators could not be achieved. The major reason given by Ms. Birkitt was the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. Other reasons included the potential for development adjacent to the mitigation areas, the limited benefit attributed to prescribed burns, and the lack of planting in certain assessment areas. Part II scoring under the UMAM rule has three categories of indicators of wetland function: location and landscape support, water environment, and community structure. For location and landscape support, the value of functions provided by mitigation assessment areas are influenced by the landscape position of the assessment area, its relationship with adjacent and regional surrounding areas, including interconnectivity that benefits wildlife. For water environment, the quantity of water in an assessment area, including the timing, frequency, depth and duration of the inundation or saturation, and flow characteristics are considered. Hydrologic requirements and hydrologic alterations are evaluated to determine the effect of these conditions on the functions performed by the assessment area. For community structure, each mitigation assessment area is evaluated with regard to its characteristic community structure, including vegetation and habitat. By way of example, a score of 10 means the mitigation assessment area, based on reasonable scientific judgment, is capable of reaching 100 percent of beneficial ecological functions. A score of 5 means, that the assessment area is limited in its ability to perform beneficial ecological functions to 50 percent of the optimal value. See Fla. Admin. Code R. 62-345.500. The Petitioner’s experts identified the main hydrologic issue as the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. As discussed above, the Applicants demonstrated that the system design supports the hydrologic environment necessary to provide functional gains consistent with the UMAM scoring. The potential for development would not decrease the value of functions gained by the enhancement and restoration activities. The 25-foot buffer around the mitigation areas adds an additional layer of protection and any future developments must address potential impacts to the Project before obtaining a construction permit. The important role of prescribed burns in mitigation banks is addressed above. Any necessary supplemental plantings would be carried out by the Applicants in accordance with the vegetation success criteria. Ms. Birkitt also testified that the Applicants’ “with mitigation” condition score for approximately 45 acres in MA1 is not appropriate due to the existing conservation easement and its requirements. As explained below, the Applicants took this into account in the “current” condition score (i.e. “without mitigation). In addition, the Project will provide hydrologic enhancement that is not currently provided through the conservation easement. The Project’s success criteria require a lower percentage of nuisance and exotic vegetation, which increases plant cover of appropriate and desirable species. Also, the Applicants will provide prescribed fire and wildlife management for all communities. Time Lag and Risk The time lag associated with mitigation is the period of time between when the functions are lost at an impact site and when the site has achieved the outcome scored in Part II of UMAM. See Fla. Admin. Code R. 62-345.600. There is no time lag if the mitigation fully offsets the anticipated impacts prior to or at the time of the impacts. A score of one is appropriate for activity-based releases that will occur in less than one year. Ms. Birkitt testified that the Applicants should have applied a time lag score greater than one to the initial and activity-based releases because these activities do not provide a functional gain and, therefore, the credits released will not actually offset any impacts. However, the applicable rule applies a time lag score of one (T-factor of 1) to activities that reach success within one year. The evidence shows that the initial and activity-based releases will occur in less than one year. Any amount of risk above de minimus reduces the ecological value of the mitigation assessment area. A score of one would most often be applied to mitigation conducted in an ecologically viable landscape and deemed successful or clearly trending towards success prior to impacts. Ms. Birkitt admitted that placing the Project site under a conservation easement and installing the hydrologic improvements should benefit the Project’s hydrology, but opined that no benefit would actually occur. As discussed above, the hydrologic improvements are designed to provide an instantaneous and clear trend towards success. Mitigation Credits The Mitigation Bank Permit proposes to authorize 388.13 wetland mitigation credits. D.R. Horton would receive 99.56 credits for MA1 and 150.92 credits for MA2. Osceola County would receive 137.65 credits for MA3. The Applicants evaluated the quality of the wetlands by performing the functional assessment of the Project site in the “current” condition and then the functional assessment of the Project site in the “with mitigation” condition. This evaluation method yielded the quality of the restoration and enhancement. The Applicants further evaluated the resulting quality against the total acreage for the Project. In total, the Applicants propose restoring 183.18 acres of wetlands and enhancing 542.52 acres of wetlands and associated uplands. It is “exceptional” and “unique” to have so much wetland restoration in a mitigation bank project. The Applicants recognized that the District previously issued a permit requiring a conservation easement on approximately 45 acres in MA1. The proposed success criteria from that preservation were taken into account in the “current” condition score for that assessment area. Osceola County acquired MA3 with funds through the land conservation program established by its SAVE Ordinance. The SAVE Ordinance places minor limits on the area. According to Osceola County’s Parks and Public Lands Director, Robert Mindick, the County’s management plans and the County’s SAVE Ordinance do not create the same land restrictions as a conversation easement. Nonetheless, the Applicants effectively treated the SAVE Ordinance as a conservation easement when assessing the UMAM scores for MA3. This was a more conservative approach. Credit Releases The Project would receive a 20 percent credit release upon recordation of conservation easements and providing the financial assurances required by the Permit. This initial release is a generally accepted practice, is considered a reasonable approach and would occur in less than one year. The Project would receive a 15 percent credit release based on successful construction and implementation of the hydrologic improvements. This activity-based release is generally accepted, is considered a reasonable approach, and would occur in less than one year. The remainder of the mitigation credits would only be released upon the Project attaining full success. The Project is structured so that 65 percent of its credits cannot be released until attaining full success. This structure is atypical, but puts the burden on the Applicants to perform in order to realize 65 percent of its credits. The Credit Release Schedule is reasonable and consistent with applicable rule criteria. Mitigation credits generated by MA3 may only be used by Osceola County in conformance with the limitations imposed by section 373.414, Florida Statutes. The ledger for mitigation credits will differentiate between MA1 and MA2 and MA3. Attorney’s Fees The Petitioner did not participate in this proceeding for an improper purpose as defined in section 120.595(1), Florida Statutes. As found in paragraphs 6 and 8 above, the Petitioner’s concerns were not purely economic as alleged by D.R. Horton. The Petitioner’s pleadings, starting with its Petition and Amended Petition, were not interposed for an improper purpose as defined in section 120.569(2)(e). Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 6, 8 and 9 above, and does not prove an improper or frivolous purpose. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns. The Petitioner’s Amended Petition was not interposed for a frivolous purpose as defined in section 57.105, Florida Statutes. Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 4 through 9 above and does not prove that the pleading was frivolous. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns. Ultimate Findings The Applicants presented a prima facie case demonstrating compliance with all applicable permitting criteria for the Mitigation Banking Permit. The Petitioner did not prove its case in opposition by a preponderance of the competent substantial evidence. However, the Petitioner did not participate in this proceeding for an improper or frivolous purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the South Florida Water Management District enter a final order approving the issuance of Mitigation Bank Permit Number 49-00007-M, as modified, subject to the conditions set forth in the Staff Report; and ORDERED that D.R. Horton’s request for reasonable attorney’s fees and costs under sections 57.105, 120.595, and 120.569, Florida Statutes, is denied. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2018. COPIES FURNISHED: Susan Roeder Martin, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Wayne E. Flowers, Esquire Lewis, Longman & Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32256 (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office Suite 4700 1 Courthouse Square Kissimmee, Florida 34741 (eServed) Shannon Marie Charles, Esquire Osceola County Attorney's Office 1 Courthouse Square Kissimmee, Florida 34741 (eServed) Julia G. Lomonico, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Maricruz R. Fincher, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Bridgette Nicole Thornton, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) John W. Bizanes, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. Suite 210 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) John J. Fumero, Esquire Nason Yeager Gerson White & Lioce, P.A. 750 Park of Commerce Boulevard, Suite 210 Boca Raton, Florida 33487 (eServed) Thomas F. Mullin, Esquire Nason Yeager Gerson White & Lioce, P.A. Suite 210 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) Ernest Marks, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Brian Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed)
The Issue The issue for the undersigned to determine is the amount payable to Respondent, Agency for Health Care Administration (AHCA or Respondent), as reimbursement for medical expenses paid on behalf of Petitioner pursuant to section 409.910, Florida Statutes (2020),1 from settlement proceeds he received from third parties.
Findings Of Fact AHCA is the state agency charged with administering the Florida Medicaid program, pursuant to chapter 409. On September 6, 2019, Mr. St. Surin was severely injured when his motorcycle struck a car. In this accident, Mr. St. Surin suffered severe and permanent injury to his back, neck, scapula, ribs, and knee. 1 All references to Florida Statutes are to the 2020 codification, unless otherwise indicated. Mr. St. Surin’s medical care related to the injury was paid by Medicaid. Medicaid, through AHCA, provided $28,482.15 in benefits. In addition, Medicaid, through a Medicaid managed care organization known as WellCare of Florida, paid $7,278.25 in benefits. The combined total amount of these benefits, $35,760.40, constitutes Mr. St. Surin’s entire claim for past medical expenses. Mr. St. Surin pursued a personal injury claim against the owner and driver of the car who caused the accident (collectively the “Tortfeasors”) to recover all of his damages. The Tortfeasors’ insurance policy limits were $100,000, and the Tortfeasors had no other collectable assets. Mr. St. Surin’s personal injury claim was settled for the insurance policy limits of $100,000. During the pendency of Mr. St. Surin’s personal injury claim, AHCA was notified of the claim and AHCA asserted a Medicaid lien in the amount of $28,482.15 against Mr. St. Surin’s cause of action and the settlement proceeds. AHCA did not commence a civil action to enforce its rights under section 409.910, or intervene or join in Mr. St. Surin’s action against the Tortfeasors. AHCA was notified of Mr. St. Surin’s settlement by letter. AHCA has not filed a motion to set aside, void, or otherwise dispute Mr. St. Surin’s settlement. Application of the formula found in section 409.910(11)(f) would require payment to AHCA of the full $28,482.15 Medicaid lien given the $100,000 settlement. Petitioner has deposited the Medicaid lien amount in an interest- bearing account for the benefit of AHCA pending a final administrative determination of AHCA’s rights. Petitioner presented testimony from Scott Kimmel, Esquire. Mr. Kimmel represented Mr. St. Surin in his personal injury claim against the Tortfeasors. Mr. Kimmel is a personal injury attorney and has practiced law for 30 years. Mr. Kimmel testified that he placed a conservative value of $1 million on Mr. St. Surin’s personal injury claim, but that the personal injury claim was settled for policy limits of $100,000 because the Tortfeasors had no other collectable assets. Using the pro rata allocation methodology, Mr. Kimmel testified that $3,576 of the $100,000 settlement proceeds should be allocated to past medical expenses because the personal injury claim was settled for ten percent of its conservative value. Mr. Kimmel’s testimony was credible, persuasive, and uncontradicted. AHCA did not challenge Mr. Kimmel’s valuation of the personal injury claim, or his use of the pro rata allocation methodology to determine the amount of settlement proceeds that should be allocated to past medical expenses, nor did AHCA offer any evidence from which the undersigned could arrive at a different valuation or allocation. There is no reasonable basis to reject Mr. Kimmel’s testimony, and it is accepted here in its entirety. The undersigned finds that the value of Mr. St. Surin’s personal injury claim is $1 million, and that $3,576.04 of the $100,000 settlement proceeds should be allocated to past medical expenses.
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration (“AHCA”), for medical expenses paid on behalf of Ashley Nunez pursuant to section 409.910, Florida Statutes (2016),1/ from settlement proceeds received by Petitioners from third parties.
Findings Of Fact Facts Pertaining to the Underlying Personal Injury Litigation and the Medicaid Lien On February 13, 2010, Ashley Nunez (“Ashley”), who was three years old at the time, presented to a hospital emergency room with a fever. A chest X-ray indicated that Ashley had left lobe pneumonia. The hospital ordered no blood work or blood cultures and did not investigate the cause of Ashley’s pneumonia. The hospital discharged Ashley with a prescription for Azithromycin. By February 14, 2010, Ashley’s fever was 102.9 degrees, and Ashley’s mother took her to a pediatrician. Rather than attempting to discover the cause of the fever, the pediatrician instructed Ashley’s mother that the prescription needed time to work and instructed her to bring Ashley back if the fever persisted. On February 16, 2010, Ashley’s aunt returned her to the pediatrician because Ashley’s fever was persisting and she had developed abdominal pain. Due to a concern that Ashley was suffering from appendicitis, the pediatrician referred her to an emergency room. Later that day, Ashley’s mother returned her to the emergency room that had treated Ashley on February 13, 2010. A second chest x-ray revealed that Ashley’s pneumonia had gotten much worse, and the hospital admitted her. Ashley’s respiratory condition continued to deteriorate, and blood cultures confirmed that she had streptococcus pneumonia. Two days after her admission, the hospital decided to transfer Ashley to a hospital that could provide a higher level of care. On February 18, 2010, an ambulance transferred Ashley to a second hospital. Even though Ashley’s respiratory condition continued to deteriorate, the paramedics and hospital transport team did not intubate her. Upon her arrival at the second hospital, Ashley had suffered a cardiopulmonary arrest and had to be resuscitated with CPR and medication. The lack of oxygen to Ashley’s brain and other organs resulted in catastrophic harm leading Ashley to be intubated, placed on a ventilator, fed through a gastric feeding tube, and placed on dialysis. The second hospital discharged Ashley two and a half months later. While she no longer required a ventilator or dialysis, the hypoxic brain injury and cardiopulmonary arrest left Ashley in a severely compromised medical condition. Ashley was unable to perform any activities of daily living and was unable to stand, speak, walk, eat, or see. Following her discharge from the second hospital, Ashley required continuous care. She was under a nurse’s care for 12 hours a day, and Ashley’s mother (Anna Patricia Delgado) cared for her during the remaining 12 hours each day. On February 23, 2011, Ashley died due to complications resulting from the hypoxic brain injury. Ashley was survived by her parents, Ms. Delgado and John Nunez. Medicaid (through AHCA) paid $357,407.05 for the medical care related to Ashley’s injury. Ashley’s parents paid $5,805.00 for her funeral. As the Personal Representative of Ashley’s Estate, Ms. Delgado brought a wrongful death action against the first emergency room doctor who treated Ashley, the pediatrician, a pediatric critical care intensivist who treated Ashley after her admission to the first hospital, the two hospitals that treated Ashley, and the ambulance company that transported Ashley to the second hospital. AHCA received notice of the wrongful death action and asserted a Medicaid lien against Ashley’s Estate in order to recover the $357,407.05 paid for Ashley’s past medical expenses. See § 409.910(6)(b), Fla. Stat. (providing that “[b]y applying for or accepting medical assistance, an applicant, recipient, or legal representative automatically assigns to [AHCA] any right, title, and interest such person has to any third party benefit ”). Ms. Delgado ultimately settled the wrongful death action through a series of confidential settlements totaling $2,250,000. No portion of that settlement represents reimbursements for future medical expenses. AHCA has not moved to set aside, void, or otherwise dispute those settlements. Section 409.910(11)(f) sets forth a formula for calculating the amount that AHCA shall recover in the event that a Medicaid recipient or his or her personal representative initiates a tort action against a third party that results in a judgment, award, or settlement from a third party. Applying the formula in section 409.910(11)(f) to the $2,250,000 settlement, results in AHCA being owed $791,814.84 in order to satisfy its lien.2/ Because Ashley’s medical expenses of $357,407.05 were less than the amount produced by the section 409.910(11)(f) formula, AHCA is seeking to recover $357,407.05 in satisfaction of its Medicaid lien. See § 409.910(11)(f)4., Fla. Stat. (providing that “[n]otwithstanding any provision in this section to the contrary, [AHCA] shall be entitled to all medical coverage benefits up to the total amount of medical assistance provided by Medicaid.”). Valuation of the Personal Injury Claim Tomas Gamba represented Petitioners during their wrongful death action. Mr. Gamba has practiced law since 1976 and is a partner with Gamba, Lombana and Herrera-Mezzanine, P.A., in Coral Gables, Florida. Mr. Gamba has been Board Certified in Civil Trial Law by the Florida Bar since 1986. Since the mid-1990s, 90 percent of Mr. Gamba’s practice has been devoted to medical malpractice. Over the course of his career, Mr. Gamba has handled 60 to 70 jury trials as first chair, including catastrophic injury cases involving children. In 2015, the Florida Chapter of the American Board of Trial Advocates named Mr. Gamba its Trial Lawyer of the Year. Mr. Gamba is a member of several professional organizations, such as the American Board of Trial Advocates, the American Association for Justice, the Florida Board of Trial Advocates, the Florida Justice Association, and the Miami-Dade County Justice Association. Mr. Gamba was accepted in this proceeding as an expert regarding the valuation of damages suffered by injured parties. Mr. Gamba testified that Petitioners elected against proceeding to a jury trial (in part) because of the family’s need for closure and the stress associated with a trial that could last up to three weeks. Mr. Gamba also noted that the two hospitals that treated Ashley had sovereign immunity, and (at the time pertinent to the instant case) their damages were capped at $200,000 each. In order to collect any damages above the statutory cap, Petitioners would have had to file a claims bill with the Florida Legislature, and Mr. Gamba testified that “the legislature would be very difficult.” As for the three treating physicians who were defendants in the suit, Mr. Gamba testified that Petitioners achieved a favorable settlement by agreeing to accept $2 million when the physicians’ combined insurance coverage was only $3 million. The decision to settle was also influenced by the fact that Ashley had a pre-existing condition known as hemolytic uremic syndrome, a blood disorder. During discovery, Mr. Gamba learned that the defense was prepared to present expert testimony that the aforementioned condition made it impossible for the defendants to save Ashley. Finally, Mr. Gamba testified that 75 percent of medical malpractice cases heard by juries result in defense verdicts. As for whether the $2,250,000 settlement fully compensated Ashley’s estate and her parents for the full value of their damages, Mr. Gamba was adamant that the aforementioned sum was “a small percentage of what we call the full measure of damages in this particular case.” Mr. Gamba opined that $8,857,407.05 was the total value of the damages that Ashley’s parents and her Estate could have reasonably expected to recover if the wrongful death action had proceeded to a jury trial. Mr. Gamba explained that Florida’s Wrongful Death Act enabled Ashley’s parents to recover for the death of their child and for the pain and suffering they incurred from the date of Ashley’s injury. According to Mr. Gamba, $4,250,000 represented a “conservative” estimate of each parent’s individual claim, and the sum of their claims would be $8,500,000. Mr. Gamba further explained that Ashley’s Estate’s claim would consist of the $357,407.05 in medical expenses paid by Medicaid, resulting in an estimate for total damages of $8,857,407.05. Mr. Gamba’s opinion regarding the value of Petitioners’ damages was based on “roundtable” discussions with members of his firm and discussions with several attorneys outside his firm who practice in the personal injury field. Mr. Gamba’s opinion was also based on 10 reported cases contained in Petitioners’ Exhibit 9. According to Mr. Gamba, each of those reported cases involve fact patterns similar to that of the instant case. Therefore, Gamba testified that the jury verdicts in those cases are instructive for formulating an expectation as to what a jury would have awarded if Ashley’s case had proceeded to trial. In sum, Mr. Gamba testified that the $2,250,000 settlement represents a 25.4 percent recovery of the $8,857.407.05 of damages that Ashley’s parents and Ashley’s Estate actually incurred. Therefore, only 25.4 percent (i.e, $90,781.30) of the $357,407.05 in Medicaid payments for Ashley’s care was recovered. Mr. Gamba opined that allocating $90,781.39 of the total settlement to compensate Medicaid for past medical expenses would be reasonable and rational. In doing so, he stated that, “And I think both – if the parents are not getting their full measure of damages, I don’t think the health care provider, in this case Medicaid, that made the payment should get, you know, every cent that they paid out, when mother and father are getting but a small percentage of the value of their claim.” Petitioners also presented the testimony of Herman J. Russomanno. Mr. Russomanno has practiced law since 1976 and is a senior partner with the Miami law firm of Russomanno and Borrello, P.A. Mr. Russomanno has been Board Certified in Civil Trial Law by the Florida Bar since 1986, and he has served as the Chairman of the Florida Bar’s Civil Trial Certification Committee. Mr. Russomanno is also certified in Civil Trial Practice by the National Board of Trial Advocates and has taught trial advocacy and ethics for 33 years as an adjunct professor at the St. Thomas University School of Law. Mr. Russomanno is a past president of the Florida Bar and belongs to several professional organizations, such as the Florida Board of Trial Advocates, the American Board of Trial Advocates, the Dade County Bar Association, and the Miami-Dade County Trial Lawyers Association. Since 1980, Mr. Russomanno’s practice has been focused on medical malpractice, and he has represented hundreds of children who suffered catastrophic injuries. Mr. Russomanno was accepted in the instant case as an expert in the evaluation of damages suffered by injured parties. Prior to his testimony at the final hearing, Mr. Russomanno reviewed Ashley’s medical records, the hospital discharge summaries, and the Joint Pre-hearing Stipulation filed in this proceeding. He also discussed Ashley’s case with Mr. Gamba and reviewed Mr. Gamba’s file from the wrongful death action. Mr. Russomanno also viewed videos of Ashley taken before and after her injury so he could gain an understanding of the severity of Ashley’s injury and the suffering experienced by her parents. Mr. Russomanno credibly testified that the damages incurred by Ashley’s parents were between $4,250,000 and $7,500,000 for each parent. Mr. Russomanno echoed Mr. Gamba’s testimony by stating that the $2,250,000 settlement did not fully compensate Ashley’s parents and her Estate for their damages. AHCA presented the testimony of James H.K. Bruner. Mr. Bruner has practiced law since 1983 and is licensed to practice law in Florida, New York, Maine, and Massachusetts. Mr. Bruner is a member of professional organizations such as the American Health Lawyers Association and the Trial Lawyers Sections of the Florida Bar. Between 2003 and 2005, Mr. Bruner served as the Department of Children and Families’ risk attorney. That position required him to evaluate personal injury actions filed against the Department and assess the Department’s exposure to liability. Based on his experience in evaluating approximately 200 cases for the Department, Mr. Bruner authored the Department’s manual on risk management and provided training to Department employees on risk management issues. Mr. Bruner has served as the Director of AHCA’s Bureau of Strategy and Compliance. In that position, he dealt specifically with third-party liability collections and Medicaid liens. Beginning in 2008, Mr. Bruner worked for ACS (now known as Xerox Recovery Services) and was engaged in attempting to recover Medicaid liens from personal injury settlements. Over the last several years, Mr. Bruner has spoken at seminars about Medicaid lien resolution and authored publications on that topic. Since April of 2013, Mr. Bruner has been in private legal practice as a solo practitioner. He describes himself as a “jack of all trades” who engages in a “general practice.” Over the last 20 years, Mr. Bruner has not handled a jury trial involving personal injury; and, over the last four years, he has not negotiated a personal injury settlement. The undersigned accepted Mr. Bruner as an expert witness for evaluating the cases contained in Petitioners’ Exhibit 9 and pointing out distinctions between those cases and the instant case. Mr. Bruner did not offer testimony regarding the specific value of the damages suffered by Petitioners. Findings Regarding the Testimony Presented at the Final Hearing Regardless of whether the reported cases in Petitioners’ Exhibit 9 are analogous to or distinguishable from the instant case, the undersigned finds that the testimony from Mr. Gamba and Mr. Russomanno was compelling and persuasive. While attaching a value to the damages that a plaintiff could reasonably expect to receive from a jury is not an exact science, Mr. Gamba and Russomanno’s substantial credentials and their decades of experience with litigating personal injury lawsuits make them very compelling witnesses regarding the valuation of damages suffered by injured parties such as Petitioners. Accordingly, the undersigned finds that Petitioners proved by clear and convincing evidence that $90,781.39 constitutes a fair and reasonable recovery for past medical expenses actually paid by Medicaid. However, and as discussed below, AHCA (as a matter of law) is entitled to recover $357,407.05 in satisfaction of its Medicaid lien.3/
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner, Seminole Community Action, Inc. (SCA), is a community action agency serving Seminole County, Florida. The organization is a non- profit corporation located at 1101 Pine Avenue, Sanford, Florida and has been in operation since 1966. According to its by-laws, SCA administers the Community Services Block Grant (CSBG) program in Seminole County. The general purpose of the agency is to plan and mobilize resources to help improve the quality of life for low income families throughout the community. Its primary source of funding has been from the federal and state governments although it does receive a small amount of private funding through contributions. Effective July, 1982 the responsibility for administering the CSBG program was shifted from the federal government to respondent, Department of Community Affairs (DCA). This meant that applications for CSBG funding would thereafter be filed with respondent rather than the United States Department of Health and Human Services. After considerable difficulty in preparing its initial application, SCA filed an application with DCA on January 28, 1983 seeking a $95,435 CSBG grant retroactive to the period December 1, 1982 through September 30, 1983. The contract called for monthly payments to SCA of $9,543.50 and required SCA to serve an estimated 4,075 CSBG eligible low-income clients during the 10-month period. Prior to filing the application, DCA representatives spent two days with SCA officials assisting them in completing the application. At that time, SCA was told that its fiscal records and operations were inadequate, that certain changes would be necessary relative to recording liabilities on its books, that its purchasing procedures must be improved, and that its record- keeping in general was in poor condition. Because of these deficiencies, DCA advised SCA by letter dated February 18, 1983, that seven special conditions pertaining to fiscal accountability would attach to the grant of funds. These conditions are set forth in Attachment A to the contract. In addition, DCA advised SCA by letter dated February 24, 1983 of federal requirements pertaining to the composition of its board of directors. Information concerning SCA's compliance with the board requirements was requested no later than March 17, 1983. A contract was eventually signed by SCA on March 29, 1983 whereby it agreed to adhere to the seven special conditions. DCA representatives made two "monitoring visits" to SCA on May 18-20, 1983 and June 1-3, 1983 to determine if the organization's fiscal operation, board composition and program services were in compliance with state regulations and contract terms. Although SCA was given advance notice of the visits, and told to have appropriate records available to substantiate fiscal reports, client records, compliance with the seven special contract conditions, and other matters, the auditors found a "lack of compliance with the law for the structure of the Board," 1/ "lack of fiscal procedures and adequate controls for fiscal accountability," "no documentation that the agency (was) serving low income persons," and a "questionable effort" to provide services to that class of persons. A more detailed list of deficiencies is found in respondent's exhibit 8 received in evidence. As a result of the above deficiencies, SCA was advised by letter dated June 15, 1983 that "it (was) imperative that corrective measures be promptly undertaken to correct these problems." A deadline for compliance in eight specific areas was set for July 15, 1983, and if it did not do so, SCA was told the contract would be terminated. On July 15, 1983, SCA was notified by letter that its contract was being terminated effective June 30, 1983. Such action was appropriate because SCA failed (a) to comply with board of director structure requirements, (b) to resolve a carry-over debt from a prior year, (c) to justify a $9,544 budget amendment, (d) to resolve $3,700 in disallowed costs, and (e) to "demonstrate a continuing fiscal accountability to the satisfaction of the Department." Petitioner has also participated in the State Weatherization Assistance Program whereby it receives state funds for conservation purposes. These are federal grant monies funded under the Low-Income Home Energy Assistance Act of 1981, and are granted for the purpose of providing information, services and technical assistance concerning weatherization and energy conservation to the low income community. It received $21,432 in grant funds during the fiscal year 1982-83, and was subjected to an audit by a state monitoring team in July, 1983 to insure compliance with program goals. The team found SCA had paid salaries from the grant funds in violation of federal regulations and had constructed a "cooler room" to store surplus food with grant monies in violation of federal law. Then, too, CA's administrative expenses totaled 34.9 percent of total funds which was far in excess of the norm of 5 percent for other agencies. Finally, it spent on the average over $1,300 to weatherize each home when the maximum allowed was only $1,000 per home. Because of these deficiencies, SCA's application for renewal of the program during 1983-84 was properly denied. Petitioner has also made application for CSBG funds for fiscal year 1983-84. Since the time its 1982-83 contract was terminated, SCA has failed to satisfy the concerns which were raised in the letter of July 15, 1983 which terminated the contract. Specifically, its Board of Directors still does not comply with federal or state requirements, and its fiscal irregularities have not been resolved. Until it does so, it is ineligible for grant funds and DCA is justified in refusing to approve SCA's applications. SCA contends all matters raised in the July 15, 1983 termination letter have been satisfactorily resolved. In making this contention it relies primarily upon a letter dated February 15, 1984 from the United States Department of Health and Rehabilitative Services to SCA, and the adoption of amended by- laws which comply with federal guidelines pertaining to community action agency board of directors. However, neither the letter nor the amended by-laws satisfy the long-standing deficiencies cited by DCA.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the relief requested in Seminole Community Action, Inc.'s petition be DENIED. DONE and ORDERED this 1st day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1985.
