The Issue Whether the application of Respondent Lewis for an Environmental Resource Permit to construct a finger pier qualifies for an exemption from the need to obtain such a permit.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Environmental Protection is responsible for administering the provisions of Chapter 373, and it is specifically responsible for issuing permits for the construction of docks in and over surface waters of the State of Florida. Sections 373.019(2); 373.026; and 373.413, Florida Statutes. Mr. Lewis applied to the Department for an environmental resource permit to construct a finger pier extending into a waterway known as Cypress Creek, which is classified as Class III Waters and is located on the Intracoastal Waterway in Palm Beach Gardens, Florida. According to the plans submitted with the application, the finger pier will be three feet wide, will extend thirty-six feet from the bulkhead into Cypress Creek, and will extend approximately twelve feet past the mean low water line. The plans show that the pier will be built on pilings and will consist of 108 square feet of surface area. The finger pier will be used to dock one boat and will be used as a private dock. When Mr. Lewis's application was initially reviewed, the Department assumed that Cypress Creek flowed over state-owned submerged lands. This assumption was reflected in the August 21, 1998, letter from the Department notifying Mr. Lewis that his proposed finger pier qualified for an exemption from the requirement for an environmental resource permit pursuant to Rule 40E-4.051(3)(b), Florida Administrative Code. The Department subsequently learned that Cypress Creek is an artificially created waterway, and, therefore, the land beneath the creek is not state-owned submerged land. Mr. and Mrs. Lewis own fee simple title to Lot 16 in Paradise Point, in Palm Beach Gardens, Florida. Petitioners Douglas Dedo and Kathy Crawford own Lot 17 in Paradise Point. Lot 16 is adjacent to Lot 17 but has no access to Cypress Creek. Mr. Dedo's and Ms. Crawford's predecessor-in-interest in Lot 17 conveyed to Mr. Lewis's predecessor-in-interest an easement over the westernmost twelve feet of Lot 17, "for purposes of ingress and egress to Cypress Creek and for docking purposes." 1/ The property owned by Petitioners Scott and Vicky Porter is Lot 4 of Cypress Creek Point, which abuts the easement on the west side. Mr. Dedo and Ms. Crawford have a marginal dock, that is, a dock which is roughly parallel to the shoreline, extending into Cypress Creek to the east of Mr. Lewis's easement. Mr. and Mrs. Porter have what is known as a "T-dock," extending into Cypress Creek to the west of Mr. Lewis's easement. The Porter's T-dock extends from the retaining wall eighteen feet into Cypress Creek. Water Quality The proposed finger pier will be constructed of wood, which will not adversely affect water quality. However, the proposed finger pier will be built on pilings, and the primary concern regarding the effect of this project on water quality is that the process of driving the pilings for the finger pier causes the sand to lift from the bottom of the waterway, causing turbidity, or cloudiness, in the water. The turbidity will be substantially mitigated for this project because the contractor will use turbidity screens to trap any sediment in the area where the pier is being constructed and around the pilings while they are being driven into the bottom of the creek bed. In order to construct the finger pier, it will be necessary to drastically trim, and probably destroy, two or three young mangroves that are growing on the creek bottom in front of the retaining wall on the western edge of the easement. In addition, it will be necessary to lightly trim a few other young mangroves adjacent to the proposed pier, but these mangroves should not be destroyed. Although mangroves contribute to good water quality, the effect of the destruction of two or three young mangroves on water quality in Cypress Creek would be negligible. Navigation In the area in front of Lot 17, the lot owned by Mr. Dedo and Ms. Crawford and on which Mr. Lewis's easement is located, Cypress Creek flows roughly east-and-west, with the entrance to the Intracoastal Waterway to the east of Lot 17. Just to the west of the easement, in front of Mr. and Mrs. Porter's property, the creek narrows and curves to the south. As a result of the narrowing of Cypress Creek in front of Mr. and Mrs. Porter's property, Mr. Lewis's proposed finger pier will not extend as far into Cypress Creek as the existing T-dock on the Porter's property. 2/ Most of the boats that pass the area where Mr. Lewis proposes to construct the finger pier are twenty-to-thirty feet long and have drafts from one-to-two feet. At mid-tide on May 12, 1999, the water was four feet deep in the center of the channel in Cypress Creek, directly in front of Mr. Lewis's easement. The measurement from waterline- to-waterline in front of the easement was ninety-three feet. The measurement from waterline-to-waterline in front of Mr. and Mrs. Porter's property at mid-tide on May 12, 1999, was sixty- eight feet. In navigating Cypress Creek, boaters curve toward the area where Mr. Lewis's pier will be located and, at low tide, "hug" the Porter's dock because of a shallow area which extends an undetermined distance into the creek from the north bank opposite the Porter's property. The water thirty-six feet from the bulkhead at the location of the proposed pier was four feet deep at low tide, as measured by Petitioner Dedo. At low tide, again as measured by Petitioner Dedo, approximately twenty-two feet of Mr. Lewis's proposed pier would extend over dry land, with approximately fourteen feet of the pier extending over the water. At low tide on May 13, 1999, as measured by Petitioner Scott, Cypress Creek was sixty-four feet wide from waterline-to- waterline in front of the easement. Therefore, boaters would have approximately fifty feet of water in which to navigate past the proposed finger pier. 3/ Flood control The proposed finger pier will not impede water flow through Cypress Creek and, therefore, will not adversely affect flood control. The pilings will be spaced twelve feet apart, and there will be no wave break or baffle or other impediment to water flow attached to the pier. Summary The evidence presented at hearing is sufficient to establish with the requisite degree of certainty that the three- foot by thirty-six-foot finger pier Mr. Lewis proposes to construct on the easement at the western edge of Lot 17 of Paradise Point will not violate water quality standards, impede navigation, or adversely affect flood control.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding that the finger pier Larry Lewis proposes to construct on Cypress Creek in Palm Beach Gardens, Florida, is exempt from the requirement that an environmental resource permit be obtained in order to construct such a structure in and over the waters of the State of Florida. DONE AND ENTERED this 26th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 26th day of October, 1999.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, I make the following: The Respondent, Gerald W. Conrad, is a registered building contractor who holds license No. RB 0016374. The projects involved herein are situated in Pinellas County, Florida. Pinellas County has a local Construction Industry Licensing Board which declined to prosecute this matter when it was referred to the local board for its determination as to whether or not any disciplinary action should be taken against the Respondent, Gerald W. Conrad. Jerry Taylor, an investigator with the Board since approximately February of 1977, investigated the Board records as they relate to the Respondent. Evidence reveals that on May 1, 1977, Respondent Conrad d/b/a Spanish Grants, Inc., effected a license renewal and during July of 1977, Respondent requested and was granted permission to change the contracting entity involved herein from a corporate entity to a sole proprietorship. Peter M. Lipman, the Executive Director of the Pinellas County Construction Licensing Board, testified that the complaint allegations concerning the Respondent were presented to the Board informally and that the Board, pursuant to its rules and regulations, conducted a preliminary inquiry into the matter and decided to defer to the jurisdiction of the State Board. Lipman testified that he, as the official custodian of the local Board records, found no evidence of any registration or certification of Respondent with the local Board either as an individual or as a corporate entity. Jack Harris and his spouse, on March 14, 1977, entered into a contract with the Respondent to construct a home for a price of $44,000.00. On March 15, 1977, Harris tendered a $1,000.00 deposit to a Mr. Charles Pitcock, Sales Director for the Respondent, as security for the land on which the home was to be constructed. (See Petitioner's Exhibit No. 2.) Shortly thereafter, Mr. Harris visited the local offices of First Federal Savings and Loan Association of Tarpon Springs and arranged permanent financing. According to the terms of the agreements entered into with the Respondent, approximately $30,000.00 was to be given the contractor at the completion of construction, with approximately $12,000.00 to be financed. During the early days of April, 1977, Mr. Harris received a call from Respondent asking that approximately $7,800.00 be paid in order to commence the construction of his home. The money was forwarded to Respondent on April 8, as requested. On May 18, the Harrises received a request from Respondent for $7,200.00 for nest connected with the pouring of the slab and for plumbing, which request was honored on May 24. On May 28, Respondent requested an additional $7,000.00 for payments toward the construction costs in erecting the lintels. On June 1, 1977, the Harrises sent Respondent a check for $7,000.00, as requested. The Harrises were then living in Rego Park, New York, and were making efforts to retire to the home that the Respondent was constructing in Pinellas County, Florida. On June 1, the Harrises received a letter from Respondent's Sales Director (Pitcock) who advised that he was leaving the Respondent's employ. Mr. Pitcock also outlined in that letter several reminders and recommendations to the Harrises, such as continual monitoring of the construction progress; advising them to make their homeowner's insurance effective when exterior walls were erected; confirming closing dates with builders before appearing for same and a general offer to be of service when he could provide same. (See Petitioner's Exhibit No. 3.) All payments to Respondent from the Harrises were by check. (See petitioner's Composite Exhibit No. 4.) At about this same time, the Harrises became concerned about their reports of the lack of progress toward the construction of their home and Mr. Harris made a trip to Pinellas County from New York. Mr. Harris was able to arrange a meeting with Gerald Conrad and William Walker, Respondent's President and Vice President respectively. This meeting centered around the Harrises' inability to obtain a deed to the property they had purchased. On June 13, the Harrises filed an official complaint with a Mr. Anderson of the Consumer Affairs Department of Pinellas County. After the Harrises had paid approximately $15,000.00 toward the purchase price of their home and was unable to get a clear deed to the property, they ceased making further payments and Respondent has not refunded their money. The house was being constructed in a subdivision known as Oakleaf Village on Lot. 24, Block K, Oakleaf Village Unit 6. Further developments revealed that on October 26, 1976, the Respondent by its President, Gerald W. Conrad, executed a warranty deed to Richard G. and Kathleen Gushwa, that was the same property which the Harrises had agreed to purchase from the Respondent. (See Petitioner's Exhibit No. 6.) Richard Gushwa, an employee of the City of Clearwater, testified that he contracted with the Respondent to construct him a home for a total purchase price of $44,500.00. Initially the Gushwas paid the Respondent a $200.00 binder and thereafter an $8,400.00 start- up fee. The $8,400.00 was paid on October 25, 1976. When construction had not commenced as scheduled during January, 1977, the Gushwas arranged a meeting with their attorney and Messrs. Conrad and Walker, at which time the Respondent requested an additional $3,500.00 to construct the home which the Gushwas had contracted for in October of 1976. The parties were unable to resolve their differences and the matter ended, with the Gushwas paying no more money toward the contract price. During late April of 1977, Mr. Gushwa noticed a building permit erected on his property and later learned that the house was being constructed for the Harrises. During the first week of April, 1978, the Gushwas were able to sell the lot and abandoned building "as is" to Thomas and Sandra Hanson for $10,500.00. (See Petitioner's Exhibits Nos. 6 and 8.) On April 12, 1977, the Respondent, Richard A. and Helen Cope entered into a contractual agreement whereby the Copes agreed to pay Respondent $65,700.00 for a home to be erected in Oakleaf Village subdivision in Pinellas County, Florida. (See Petitioner's Exhibit No. 9.) The Copes paid $15,000.00 for the lot and to date, no improvements have been made. Additionally, the Copes have been unable to receive a deed to their property nor has Respondent refunded their monies. Bernard and Mary Koser entered into an agreement with the Respondent for the construction of a home to be built in Oakleaf Village for a total purchase price of $55,000.00. On March 21, 1977, the Kosers paid the Respondent, Spanish Grants, Inc., $11,600.00 and to date, the Kosers too have been unable to obtain a refund of these monies which were paid to Respondent nor has the property been deeded to them. (See Petitioner's Exhibits Nos. 10 and 11.) On November 29, 1976, Joseph T. and Patricia Vollaro entered into a contract with Spanish Grants, Inc., for a home to be constructed for $51,460.00. The home was erected on property owned by a Mr. Dreher. The Vollaros purchased the land from the Drehers for a price of $8,080.00. Additionally, the Vollaros paid approximately $2,485.00 over and above the amounts paid for the lot and the price they contracted for their home. (See Petitioner's Exhibits Nos. 11 and 12.) Evidence also reveals that the Respondent, Gerald W. Conrad, pulled two permits for Lot 24, Block K of the Oakleaf Village subdivision. (See Petitioner's Composite Exhibits Nos. 3 and 14.) RESPONDENT'S DEFENSE Essentially, the Respondent, through counsel, attacked the alleged vagueness and uncertainty of Chapter 468.112(e), F.S. Finally, the Respondent considered the acts here complained of against him to be regrettable and that, if possible, he would "turn back the clock".
Recommendation Based on the foregoing findings and conclusions of law, it is hereby RECOMMENDED: That the Respondent's registered building contractor's license No. RB 0016374 be revoked. That the Respondent pay the Board an administrative fine of $300.00. RECOMMENDED this 27th of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry S. Sinoff, Esquire 1010 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 John Turnbull, Esquire 319 South Garden Avenue Clearwater, Florida 33516 Mr. C. H. Hoskinson Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue Whether Respondent, L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. and its surety, Western Surety Company owes Petitioner $4,210.00 for East Palatka Holly Trees.
Findings Of Fact Petitioner A.D. Andrews, Inc. is a producer of agricultural products, pursuant to Section 604.15 (9), Florida Statutes. Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapes, Inc. is a dealer in agricultural products pursuant to Section 604.15 (2), Florida Statutes. Respondent’s surety is Western Surety Company Teal Pomeroy, a salesman for Petitioner, and Pat Tronzano, Purchasing Manager for Respondent, have a business history representing their respective principals. All previous dealings have been satisfactory, and they share a mutual respect. While at a trade show in Orlando, Florida, Teal and Tronzano entered into an oral agreement for the sale of 31 East Palatka Holly bushes/trees (30 at the rate of $135.00 each, and one for $160.00) at a total price of $4,210.00, due from Respondent to Petitioner. Neither participant in this arrangement testified to any oral terms covering “point of sale” or a guarantee of any condition of the hollies at a final destination. Neither participant testified that a standard course of business on these issues had arisen between them as a result of their prior transactions. On October 9, 2007, Mr. Tronzano sent a third party freighter (trucker) to pick-up the hollies at Petitioner's nursery in Chiefland, Florida, and transport them, at Respondent’s expense, to Selena, Texas, for planting and landscaping by Respondent. Mr. Tronzano did not accompany the third party freighter to Petitioner's nursery or on the subsequent trip to Texas. He never saw the hollies in question prior to loading or while they were still on the truck after loading. The trucker selected by Respondent was one specially skilled in the transport of landscape plants, and Respondent has successfully used him for prior purchases and transports. The third party freight truck arrived at Petitioner’s Chiefland, Florida, nursery at approximately 11:00 a.m. on October 9, 2007, before all the hollies had been dug up. However, the trees that were ready to load and those that had to be dug up were loaded by Petitioner, and by 2:00 p.m., the truck, fully loaded, left Petitioner’s property. Petitioner’s invoice clearly states: ATTENTION: If these trees are not in satisfactory condition when received, do not accept them. We do not replace trees. Please note any discrepancies or problems with materials. The invoice does not show the trucker noted any problems with the hollies. The trucker also signed the delivery ticket under the statement, “I acknowledge that trees were received in good condition.” Approximately 48 hours later, Mr. Tronzano received a report from Texas that when the freighter delivered the hollies to the Selena, Texas site, some hollies were dead and other were dying. Mr. Tronzano did not personally witness anything at the final destination. Respondent's photographs in evidence, the date of which has not been automatically printed on them, show some trees which had already been unloaded in Texas with dried- out root balls. They show no trees with dried-out root balls still on the truck. All photographs show intact root balls, although they are dusty and some trees are clearly dead or dying. One tree is dead in a pot. Although it had taken Respondent’s trucker approximately 48 hours to get the hollies to their ultimate destination in Texas, the normal driving time is 16-20 hours. Because federal regulations require a period of rest for commercial drivers every eight hours, Respondent put forth the theory that because there had been a delay of three hours at Petitioner’s nursery while some hollies were dug up and loaded, the delaying effect of three hours snowballed to a total delay of as much as 22-28 hours for the truck’s arrival time at the final destination. This theory is speculative and unsubstantiated by the evidence. Despite some earlier attempts, Respondent did not notify Petitioner of the condition of the hollies at the final destination until October 15, 2007. Respondent concedes that 11 of the 131 hollies were accepted in good condition. Whether one of the survivors was the single holly tree sold for $160.00, is not in evidence. Respondent has not paid Petitioner for any of the hollies. Mr. Tronzano has not had a dry-out problem like this one in ten years. Respondent's second theory of why the hollies arrived at the Texas destination in poor shape is an assertion that the way Petitioner processed and handled the harvesting of the hollies adversely affected their health. Respondent speculates that Petitioner’s digging and immediately loading the just-dug hollies onto the truck sent by Respondent resulted in shock to the hollies’ root systems so that the root systems dried out. Mr. Teal and Mr. Tronzano agree that previous trees (not necessarily East Palatka hollies) sold by Petitioner to Respondent had been "pre-dug" and "staged" by Petitioner in anticipation of the arrival of the freighter. “Staging” means that Petitioner dug up the trees, put them on a trailer, and took them to a centralized loading area at the nursery for Respondent’s pick-up. According to Mr. Teal, the foregoing “pre-dig and stage” method prevents "double-handling" of trees, but many trees are dug up only when a truck arrives at the nursery to take them away. Mr. Teal was not present at the nursery on October 9, 2007, but opined that if the hollies on this occasion had been pre-watered, they would be unlikely to die of shock, despite being dug up and loaded right away. Moreover, the particular trees sold to Respondent came out of a field that Petitioner irrigates, so "dry out" should not have been a problem. Mary Andrews works in Petitioner's business office. She did not know about Respondent's order until the truck arrived on October 9, 2007, but she managed the "dig and load" within three hours of the truck’s arrival. She testified that Petitioner digs trees throughout the year so that when a truck arrives, the trees have not been sitting dry in a field for lengthy periods of time. Petitioner sold 3500 similar trees in the previous year without any dry-out problems. Petitioner had admitted in evidence, without objection, Florida Division of Forestry rainfall records for three locations near Petitioner's nursery. All three official records show six inches of rainfall for the week immediately preceding October 9, 2007. Petitioner maintains that the trucker should have watered the hollies en route. Respondent believes the trucker did water them, but the trucker did not testify, so there is no direct evidence that the trucker watered the hollies en route. The parties have tried to work this situation out, but their respective offers of compromise are not admissible herein, pursuant to Section 90.408, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., shall pay Petitioner, A.D. Andrews Nursery, Inc., the sum of $4,210.00, and that if L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., fails to pay Petitioner, A.D. Andrews Nursery, Inc., within 30 days of the final order, then Respondent, Western Surety Company, shall pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2008. COPIES FURNISHED: Teal Pomeroy Qualified Representative A.D. Andrews Nursery, Inc. Post Office Box 1126 Chiefland, Florida 32644-1126 Pat Tronzano Qualified Representative L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. 1437 Halsey Way Carrollton, Texas 75007-4410 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077
The Issue The issues in this bid protest are whether, in making a preliminary decision to award a public contract, Respondent acted contrary to a governing statute, rule, policy, or project specification; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact On May 18, 2004, Respondent School Board of Broward County ("School Board" or "SBBC")2 issued Request for Proposals No. 2021-24-01 (the "RFP") to solicit offers on a contract for the design and construction of a middle school (the "Project"). Proposals were submitted by Petitioner Magnum Construction Management Corporation, d/b/a MCM Corp. ("MCM"); Intervenor James P. Pirtle Construction Company, Inc. ("Pirtle"); Seawood Builders, a Division of Catalfumo Construction, LLC ("Seawood"); Stiles Construction Co. ("Stiles"); James A. Cummings, Inc. ("Cummings"); and Skanska USA Building, Inc. ("Skanska"). SBBC opened these six proposals on August 31, 2004. In accordance with the evaluation procedure set forth in the RFP, the proposals were reviewed by a Consultant's Review Committee ("CRC"), whose task was to evaluate the proposals and prepare a "short list" of between three and six firms for the School Board, which would make the final determination. At its first meeting on September 14, 2004, the CRC rejected Skanska's proposal as nonresponsive for failing to submit an original bid bond. On September 30, 2004, the CRC met again and, after deliberating, decided to place the five remaining proposers on the "short list." Following the CRC's review, the evaluation proceeded pursuant to Section 1.21 of the RFP, which states: The Facilities and Construction Management Division will forward to the Superintendent of Schools the completed short-list of the Proposer's Submittal. The Superintendent will then forward the Short- List to The School Board of Broward County, Florida for its use in the interview and final selection of the successful Proposer(s). The short list of [sic] will be forwarded to the School Board of Broward County, Florida unranked. The short-listed firms shall present their design solutions to The School Board of Broward County, Florida. Short-listed firms will be notified of the time and place for their respective presentations. Proposer may utilize any media for their presentations, but shall restrict their presentations to 30 minutes total (5 minutes for set-up, 10 minutes for presentation, and 15 minutes for questions and answers). At the conclusion of the Proposer's presentation to the Board, Board Members may ask questions concerning the presentation, the Proposer's assembled Design/Build team, and the Design Criteria Professional's assessment of the Proposer’s submittal or topic of the Board Member's choice [sic] preliminary design concept for the project, including means and methods. At the conclusion of the presentation and interview of all short-listed firms, The School Board of Broward County, Florida will deliberate and utilize the short-listing evaluation criteria and point schedule to finalize a selection of the successful Proposer. The Board reserves the right to award a contract for the project or award no contract (reject all submittals). During and at the conclusion of the presentation and interview of all short- listed firms, the School Board of Broward County, Florida will assign points to each Proposer utilizing the above evaluation criteria and rank them according to their scores. The firm receiving the most points by a Board Member will be considered the first choice of that Board member. The firm that receives a majority of the first choice votes may be awarded the contract.[3] In the event of a tie, a voice vote will be taken until the tie is broken. The Board reserves the right to award a contract for the project or award no contract. The "evaluation criteria and point schedule" referred to in Section 1.21(D) and (E) are found in Section 1.20, which provides as follows: The School Board of Broward County, Florida's final selection will be based on the Selection Criteria Score Sheet. Evaluation Criteria Maximum Points Profile & Qualifications of Proposer's Team 6 Proposed Project Scheduling 7 Past Work Performance and References 10 Site Design 7 Building Design 23 Cost proposal 25 S.I.T. Award 15 MBE Participation 7 Total Points Possible 100 The School Board of Broward County, Florida will award points up to a maximum, for evaluation criteria numbers listed above as based upon an evaluation of the Proposer's submittal and presentation. On October 12, 2004, the School Board held a special meeting to discuss the procurement with staff, hear the presentations of the short-listed proposers, and grade the proposals. Eight board members participated.4 One subject that generated considerable discussion was the "S.I.T. Award," an evaluation criterion worth 15 points. The S.I.T. Award (the acronym stands for School Infrastructure Thrift) was based on a mathematical calculation that left no room for discretion. Points were awarded on a predetermined scale according to the percentage by which a proposer's base proposal amount fell below, or exceeded, the Project's established budget as a function of cost per student station. Because the allowable cost per student station is $15,390 and the Project calls for 1,998 student stations, the budget, for purposes of the S.I.T. Award, is $30,749,200. As the School Board's staff had determined before the special board meeting on October 12, 2004, MCM's base proposal amount is 15.48 percent below the S.I.T budget. The cost of Cummings' proposal is 11.36 percent below the budget, Pirtle's about three percent below $30.7 million, Seawood's roughly equal to the budget, and Stiles' proposal 12 percent above the established budget. On these percentages, using the scoring scale prescribed in the RFP, MCM and Cummings were entitled to 15 points apiece in the S.I.T. Award category, Pirtle seven points, Seawood six points, and Stiles zero points. The School Board was informed of these scores before its members graded the proposals on the seven remaining criteria. After the proposers had made their presentations, the board members individually assigned points to the proposals. MCM received the highest aggregate score (713), followed by Pirtle (705), Cummings (698), Seawood (668), and Stiles (541). Pirtle, however, received the most first choice votes of any proposer——four. Cummings received two first choice votes, and MCM and Seawood were each ranked first by one member. The following table depicts the rankings by member: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM Pirtle Pirtle Cummings Pirtle Cummings Pirtle 2 MCM (-1) Cummings MCM/Seawood (-4) Seawood MCM (-2) MCM (-1) MCM (-1) Cummings 3 Cummings Pirtle Cummings Pirtle Cummings Pirtle/Seawood MCM 4 Pirtle Seawood Cummings MCM Seawood Seawood Seawood 5 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles The parenthetic numbers in the second row show by how many points MCM trailed the first choice. Although Pirtle did not receive a majority of the first choice votes, the School Board nevertheless voted to award the contract to Pirtle.5 Pirtle has argued that MCM lacks standing to maintain this protest because MCM came in tied (with Seawood) for third—— behind Pirtle and Cummings, respectively——according to the number of first choice votes each proposal received. While the RFP does not specify a procedure for ranking the proposals behind the number one choice, the method suggested by Pirtle is inconsistent with the RFP's plain language, which is clearly intended to ensure that the contract is awarded to the first choice of a majority of the board members. To determine second place, the proper question is not, Who had the most first choice votes after Pirtle? but rather, Who would be the first choice of a majority if Pirtle were unavailable? To begin to answer the relevant question, Pirtle must be removed from the rankings of the respective members, and each proposer below Pirtle moved up a spot. When this is done, the rankings look like this: Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams 1 Seawood MCM MCM/Seawood Seawood Cummings MCM Cummings Cummings 2 MCM Cummings Cummings MCM Cummings MCM MCM 3 Cummings Seawood Cummings MCM Seawood Seawood Seawood Seawood 4 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles 5 What the foregoing table shows is that without Pirtle, there is no clear favorite, but essentially a three-way tie between Seawood, MCM, and Cummings. Under the RFP, the School Board would need to take a voice vote until one of the three commanded majority support. That, of course, did not occur in the event. Therefore, it is impossible to determine, on the instant record, which proposer was the School Board's second choice (or third or fourth choice, for that matter). On October 15, 2004, MCM timely filed a notice of intent to protest the School Board's preliminary decision to award Pirtle the contract. MCM followed its notice of intent with a formal written protest, which was timely filed on October 25, 2004. MCM's protest rests on two pillars. The first is a contention that the School Board employed an unstated evaluation criterion, namely a preference for builders who had previously done work for SBBC. The second is an argument that Pirtle's proposal is materially nonresponsive for failing to comply with the RFP's directives on M/WBE participation.6 The findings that follow are pertinent to MCM's specific protest grounds. Regarding the alleged unstated evaluation criterion, it is undisputed that the RFP does not expressly disclose that past work for SBBC will or might count for more than similar work for another school district. The RFP does, however, contain a clear and unambiguous statement of experiential preferences, in Section 1.1(E), which states: The School Board of Broward County would prefer to select a Design/Builder with proven successful experience in the Design and Construction of 3 school projects completed within the past 5 years in the State of Florida. This sentence enumerates five discrete experience- related preferences, which are that, (1) in the past five years, the builder should have (2) designed and built school projects (3) on three occasions, (4) in the State of Florida, (5) each of which was a proven success. The list of experiential preferences in Section 1.1(E) is clearly exclusive, meaning that it does not purport to include other similar or related preferences, but rather is intended to identify all such preferences. This is demonstrated by the absence of any language, such as "including but not limited to" or "among other things," manifesting an intention to include other matters that are ejusdem generis7 with the items listed. Notice, too, that of the five experiential preferences, three are purely objective. Specifically, preference nos. 1, 3, and 4 (as numbered herein) are simply matters of historical fact that either happened or did not happen, for reasons wholly extrinsic to the mind of any School Board member. Moreover, the satisfaction of these three experience-related preferences is not a matter of degree: the desired quality is either objectively present, or it is absent; there is no discretionary middle ground. The upshot is that, as between two proposers who, as a matter of fact, have experience satisfying preference nos. 1, 3, and 4, no qualitative distinction can rationally be drawn as to those particulars. The other two experiential preferences, in contrast, are infused, in varying degrees, with elements of subjectivity. Thus, preference no. 2 allows the individual evaluator some discretion to determine what constitutes a "school project" and, more important, to distinguish qualitatively between one "school project" and another. Preference no. 5 is even more subjective, for "success," like beauty, is in the eye of the beholder. Rational distinctions could be drawn, therefore, between one proposer and another, based on personal (i.e. subjective) assessments of the relative "success" of the respective builders' prior "school projects."8 In evaluating the five short-listed proposals, seven of the eight participating board members9 did, in fact, award more points (on some criteria) to proposers that previously have built schools for SBBC (namely Pirtle, Cummings, and Seawood), while deducting or withholding points (on some criteria) from proposers who have not previously done work for SBBC (MCM and Stiles), based on each proposer's status as a former SBBC- contract holder or a newcomer to SBBC contracting.10 This strong parochial preference most dramatically affected the scoring of the Past Work Performance and References criterion, although some board members also considered a proposer's past work for SBBC (or lack thereof) in scoring Profile & Qualifications of Proposer's Team and even Proposed Project Scheduling.11 The preference for builders having previous business experience with SBBC had a palpable impact on the scoring and was likely decisive. Although it is impossible to quantify precisely the effect of the parochial preference, its influence can easily be seen in a comparison of the scores awarded, on the criterion of Past Work Performance and References, by the seven board members who favored SBBC-experienced builders: MCM Cummings Pirtle Stiles Seawood Budnick 7 10 10 3 8 Gallagher 3 5 10 6 8 Kraft 7 9 10 9 9 Parks 9 10 10 9 10 Rubinstein 5 10 10 8 6 Wexler 7 10 10 8 8 Williams 5 9 10 5 5 As the table shows, Pirtle, who has performed the most work for SBBC of any of the five competitors, received the maximum score from all seven of the board members who employed the parochial preference. Cummings, whose previous work for SBBC is significant but less extensive than Pirtle's, received an average score of 9 in the past work category. Seawood, which has performed some construction work for SBBC in the past, but not as much as either Pirtle or Cummings, received an average score of 7.71. Stiles and MCM, neither of which has done construction work for SBBC, received average scores of 6.86 and 6.14, respectively. At bottom, MCM and Stiles received, in the past work category, at least a point less, on average, than the lowest-ranked of the three builders having previous experience with SBBC. Given that three board members (Budnick, Rubinstein, and Wexler) ranked MCM just one point below their respective first choices, the parochial preference could well have determined the result even if its application produced only a small scoring discrepancy in a single evaluative category. One aspect of the preference for SBBC-experienced builders needs to be repeated for emphasis. The preference was manifested not only as an advantage conferred on builders having such experience, but also as a disadvantage imposed on builders lacking previous experience with SBBC. Builders having worked for SBBC received more points, for that reason, than they would have been awarded, had their previous projects been performed for owners other than SBBC, whereas builders who had not worked for SBBC received fewer points than they would have received, if their previous projects had been built for SBBC. The parochial preference, in other words, operated as a two-edged handicap, making it doubly powerful. In fact, the preference was so strong that SBBC experience was not, for seven evaluators out of eight, simply a factor to be considered in evaluating a builder's past work; it was effectively a condition of, or a prerequisite to, receiving the total possible points of 100. That is, the effect of the preference was such that unless a builder had previous experience with SBBC, the builder could not receive 10 points in the past work category from most of the board members, regardless of how extensive——and how successful——its experience in building schools for others had been. In sum, it is determined that the School Board used an undisclosed preference for builders having experience with SBBC in scoring and ranking the proposals, and that the use of this preference had a material effect on the evaluation——probably even deciding the outcome. Indeed, but for the use of this undisclosed preference, there is a good chance (though it is not certain) that MCM would have been the first choice of a majority of the board members. Whether the School Board's conduct in this regard requires that the proposed award to Pirtle be set aside will be taken up in the Conclusions of Law below. Turning to MCM's other principal contention, it is alleged that Pirtle's proposal deviated materially from the RFP's specifications because Pirtle allegedly failed to comply with the minimum requirements for minority participation in the Project. On the subject of minority participation, the RFP states, in relevant part: The School Board of Broward County, Florida is committed to affirmatively ensuring a substantial increase in the awarding of construction subcontracts to Minority Businesses. Design/Build firms selected to participate in this RFP must . . . have M/WBE subcontracting goals[,] and [the successful firm must] fully participate in the MBE Program. The M/WBE Contract Goal Range for this project is 20-22 percent. The Proposer should attempt to fulfill the goal with the following ethnic distributions: African American 6-8 percent Hispanic: 4-5 percent White Female 4-6 percent Other 0-3 percent The School Board encourages the use of minority subcontractors in excess of the minimum goal ranges established for this project. Section 00030, page 2. In addition, Section 1.13 requires that the following M/WBE-related information be submitted with a proposal: Document 00466 – Statement of Commitment [containing the proposer's pledge to comply with the M/WBE program] Document 00470 – Letter of Intent: M/WBE Subcontractor Participation [from each certified minority business that has agreed to participate in the Project, describing the subject of the subcontract and the dollar amount thereof] Separate Section with a sub tab: M/WBE Participation Briefly discuss how the Proposer will address the M/WBE participation goals. Identify proposed M/WBE team members, their role, and their anticipated percentage of participation. Include past experience with the team. Proposers shall submit evidence of dollar ($) participation for the past two (2) years, both internal and agency documentation of its M/WBE utilization, and, evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. Proposers, if awarded a contract, shall submit monthly M/WBE Utilization reports on forms provided by The School Board of Broward County, Florida, M/WBE Compliance Office, with each request for payment. Such reports shall also include evidence of dollar participation for the past 2 years, both internal and agency documentation of its M/WBE utilization, and evidence of any M/WBE outreach, internship, and apprenticeship programs it conducts. The foregoing language, which is contained in an addendum to the RFP that was issued on June 16, 2004, supplanted provisions in the first release of the RFP that would have required proposers to submit even more information relating to the satisfaction of M/WBE goals. Pirtle's proposal clearly complied with Sections 1.13(G) and 1.13(H)(1)(a)-(c) of the RFP. Where Pirtle fell short, according to MCM, was on the requirement to submit letters of intent from minority subcontractors. Pirtle did, in fact, attach a couple of letters of intent to its proposal——but these showed minimal minority participation, far below the prescribed range of 20-22 percent. MCM contends that proposers were required to submit letters of intent documenting minority participation meeting the M/WBE goals for the Project. Put another way, it is MCM's position each proposer needed to line up most or all of its minority subcontractors before submitting a proposal. The School Board asserts that proposers were not required to submit all of their letters of intent, but merely some letters as the fruit of good faith efforts to reach the mandated M/WBE goals.12 The evidence supports the School Board's contention that this was indeed the operative interpretation and understanding of Sections 1.13(G) and 1.13(H). Under this interpretation, a proposal such as Pirtle's that included some letters of intent would be deemed responsive; a paucity or plethora of letters of intent would then be a factor for the evaluators to consider in scoring MBE Participation, a selection criterion worth seven points. Whether the plain meaning of Section 1.13(H) supports MCM's or the School Board's position, or alternatively whether the School Board's interpretation is clearly erroneous, is a legal question that will be addressed below.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered that rescinds the proposed award to Pirtle. In addition, while recognizing that the choice of remedies for invalid procurement actions is within the agency's discretion, it is nevertheless recommended that a meeting be convened for the purposes of reassigning points to each proposer using the published selection criteria, re-ranking each proposer according to its respective scores, and awarding the contract to the firm that receives a majority of the first choice votes. DONE AND ENTERED this 21st day of March, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 March, 2005.
The Issue Whether Respondent Quality By Design, Inc. (QBD) owes Petitioner $2,166.75, or some lesser amount, for 45 Washingtonia Palms it purchased from Petitioner in June 2009.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of Washingtonia Palms and other trees. It grows these agricultural products on its 140-acre tree farm located in Moore Haven, Florida. The farm utilizes a ditch/canal irrigation system. In June 2009, Petitioner received two separate orders from QBD for a total of 45 Washingtonia Palms, ten-to-14 feet in overall height: a June 16, 2009, order for 27 trees (Invoice 1081); and a June 24, 2009, order for 18 trees (Invoice 1083). For both orders, the agreed-upon purchase price was $45.00 per tree. Accordingly, the amount due, including sales tax (of $85.05), for the trees ordered on June 16 was $1,300.05, and the amount due, including sales tax (of $56.70), for the trees ordered on June 24 was $866.70. QBD took delivery of the trees at Petitioner's tree farm. David Lindsey and Buddy Ward were the truck drivers dispatched by QBD to Petitioner's tree farm to take delivery of the trees. Mr. Lindsey picked up the 27 trees that had been ordered on June 16. Mr. Ward picked up the 18 trees that had been ordered on June 24. Petitioner readied the trees for delivery before they were picked up. Among the things it did as part of the preparation process was to wrap the root ball of each tree in plastic sheeting to retain moisture. After arriving at Petitioner's tree farm, Mr. Lindsey and Mr. Ward each inspected the trees Petitioner had readied for pick up and accepted them on behalf of QBD (Mr. Lindsey by signing Invoice 1081, and Mr. Ward by signing Invoice 1083). After being inspected and accepted, the trees were loaded onto Mr. Lindsey's and Mr. Ward's semi-trailer trucks and transported to QBD's tree farm in Umatilla Florida, approximately five hours away (by truck). Each of the 45 trees was in excellent condition when loaded. Mr. Lindsey's trip to QBD's tree farm was uneventful. Mr. Ward, on the other hand, was not so fortunate. As he was leaving Petitioner's property, he drove his semi-trailer truck into a ditch while making a turn. Mr. Ward was not seriously injured, and none of the trees fell off the trailer bed as a result of the mishap. A tow truck was called to the scene. Within 15 minutes of the tow truck's arrival, Mr. Ward's truck was pulled out of the ditch and he "went on [his] way," with his load of 18 Washingtonia Palms. The morning after they arrived at QBD's tree farm, the trees on Mr. Lindsey's and Mr. Ward's trucks were offloaded and "watered down." They were then put in the ground. Subsequently, fronds on each of the trees "turned brown." QBD was able to "rehabilitate" the trees by cutting off the outside row of fronds on each tree and "re-tying the heads." The labor cost of this "rehabilitation" work was $13.50 per tree. The QBD employees who did the work used a piece of equipment that QBD rented at the rate of approximately $75.00 per hour. At no time prior to the initiation of the instant litigation did QBD notify Petitioner that any of the 45 trees it had purchased was defective or non-conforming, nor did it seek to revoke its acceptance of the trees or to return the trees to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order (1) finding that QBD is indebted to Petitioner in the amount of $2,166.75 for the 45 Washingtonia Palms it purchased from Petitioner in June 2009; (2) directing QBD to make payment to Petitioner in the amount of $2,216.75 ($2,166.75, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; (3) providing that Petitioner, upon receipt of this payment, shall remit $141.75 to the appropriate taxing authority; and (4) announcing that if QBD fails to make timely payment in full, the Department will seek recovery from OCIC, QBD's surety. DONE AND ENTERED this 14th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2008.
The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
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 upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
