Findings Of Fact Petitioners, a black married couple, executed a contract for the sale of real estate with Respondent Florida West Coast Homes, Inc., on April 15, 1985 which included their purchase of the land and a dwelling to be constructed thereon at Lot 5, Charro Lane, Country Trails Subdivision, Hillsborough County, Florida. The full purchase price of the land and dwelling was $79,850.00. Respondent Locke was President and General Manager of Florida West Coast Homes, Inc., at all times material hereto. He owned 50 percent of the stock of the corporation. Locke signed Petitioners' real estate sales contract on behalf of Florida West Coast Homes, Inc. Respondent Blanke acted as real estate salesman with Florida West Coast Realty in the transaction between Florida West Coast Homes, Inc., as builder and seller, and the Petitioners, as buyers. His broker, Frances Johnson, was employed by Locke. Blanke witnessed the sales contract. A deposit totaling $2000 was paid by Petitioners, who also paid a $1500 cash advance to Florida West Coast Homes, Inc., during construction of their home. These funds have never been refunded to Petitioners, nor has their home been completed. They have never closed on, or received a deed to, the property in question. Construction on Petitioners' home was begun in August, 1985 by Florida West Coast Homes, Inc., after approval for their V.A. financing was received. Approximately two weeks prior to commencement of construction on Petitioners' home, Florida West Coast Homes, Inc., began construction of a dwelling on the lot immediately adjacent to Petitioners' lot. This neighboring lot and dwelling is owned by Respondent Blanke. In September, 1985 construction of Blanke's house and Petitioners' were both at the same stage of completion. Subsequently, however, Blanke's house was completed in February, 1986, but Petitioners' house was not completed prior to Florida West Coast Homes' filing for Chapter 11 bankruptcy on February 27, 1986. Petitioners' house has not been completed to date. Reasons given to Petitioners for the delay in construction of their home included changes in subcontractors, and the need to complete other homes under construction before Florida West Coast Homes could complete their home. In reality, Florida West Coast Homes was in serious financial difficulty from November, 1985 until its filing for bankruptcy. Subcontractors and suppliers were refusing to do business with the company, and Locke was sued repeatedly in December, 1985 and January, 1986 for amounts owed by Florida West Coast Homes, Inc. Petitioners' contract for sale of real estate states that the estimated date of their home's completion would be November 15, 1985. However, when it became apparent that this completion date would not be met, Locke repeatedly informed them of new completion dates, including December 1, December 31 and January 31. All construction on Petitioners' house stopped after October, 1985 with the house forty or fifty percent complete. In late September or early October, 1985 Petitioners' went to see how construction was progressing on their home. They found that "KKK" had been painted on a tree in their yard. Two weeks later they found that the street in front of their house had been painted with the phrase, "KKK, No Nigers" (sic). Petitioners contacted Florida West Coast Homes about these incidents and requested that the tree be cut down and the street paint removed. They were advised by Locke that he would cut down the tree, but it would cost them $200 to $300, and further that there was nothing he could do about the street painting. In late March, 1986, Petitioners received two harassing telephone calls in which the callers said, "Niggers, take your money and run." This was after Florida West Coast Homes, Inc., had filed for Chapter 11 bankruptcy and also after a newspaper article had appeared in the Tampa Tribune which detailed the incomplete progress of construction on their home, and the racial slurs which had been painted on their tree and on the street. There is no evidence that any of the Respondents were responsible for, directed, or personally engaged in activities which resulted in these racial slurs and harassing telephone calls. Petitioners testified that they believe they were unlawfully discriminated against due to their race because the house next door, which was at the same stage of construction as theirs at one time and which was owned by Respondent Blanke, a white male who was employed by Florida West Coast Realty and who indirectly reported to Respondent Locke, was completed while theirs was not. In addition, Petitioners' phone calls to Florida West Coast Homes were not returned by Locke during December, 1985 and January, 1986. Blanke's employment was terminated by Locke in August, 1985, shortly after the execution of Petitioners' sales contract. There is no evidence that the termination and the execution of this sales contract were in any way related. Blanke did return to work for Locke part-time for two weeks in October, 1985, but decided not to continue this employment. Thus, during the substantial portion of all times material hereto, there was no employment relationship between Respondents Locke and Blanke. Blanke had received conventional financing for his home construction prior to commencement of construction in August, 1985. He closed on the property and received a deed at that time. Although construction on his home was completed when Florida West Coast Homes filed for bankruptcy, his property had liens totaling approximately $10,000. Locke testified that he did not return Petitioners phone calls in December 1985 and January, 1986 because his company was in severe financial trouble, and he did not have any answers for the creditors and home buyers who were calling him. He had eight homes under construction at the time, and only Blanke's home was completed prior to bankruptcy. Of the seven homes which were not completed, six were being purchased by white families and only Petitioners' by a black family. There is no competent substantial evidence that Respondents ever told Petitioners to take their money and get out of the deal, or in any way sought to force Petitioners out of their contract for sale.
Recommendation Based upon the foregoing, it is recommended that a Final Order be entered dismissing Petitioners complaint under the Fair Housing Ordinance of Hillsborough County. DONE AND ENTERED this 11th day of March, 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1987. COPIES FURNISHED: Kerry H. Brown, Esquire 3202 Henderson Blvd. Suite 204 Tampa, Fl 33609 Richard P. Condon, Esquire 214 Bullard Parkway Temple Terrace, Fl 33617 Fred Locke 143 Bunting Lane Land O'Lakes, Fl 33539 Bryon Blanke 4804 Charro Lane Plant City, Fl 33566 Amelia G. Brown, Esquire P. O. Box 1110 Tampa, Fl 33601 Robert W. Saunders, Director Equal Opportunity Office P. O. Box 1110 Tampa, Fl 33601
Findings Of Fact Petitioner, a nonprofit corporation, was established in January of 1971 for the express purpose of rendering home health services within the State of Florida. It was approved by the Florida Department of Health and Rehabilitative Services and the then U.S. Department of Health, Education and Welfare (hereinafter "HEW") as a Medicare provider in the spring of 1971. In 1974, Petitioner created a subunit located in Bradenton to provide services in Manatee and Sarasota Counties. In 1975, a subunit was created in Warm Mineral Springs to serve lower Sarasota and Charlotte Counties. Both subunits were duly certified as home health providers by the Department and HEW. Petitioner's Medicare application was accepted as retroactive to October 1, 1975, reflecting the service area of the Warm Mineral Springs subunit to be lower Sarasota and Charlotte Counties. Petitioner has continuously provided home health services to Charlotte County on an ever-increasing basis since 1975, which predates both state licensing authority over home health services and the applicability of the Certificate of Need law to home health agencies. Since the Department has obtained licensure authority over home health services, Petitioner's Warm Mineral Springs subunit is and has been licensed to serve both Sarasota and Charlotte Counties. On September 26, 1979, Petitioner advised the Department that it intended to open an office in Charlotte County out of which it would serve its Charlotte County patients, setting forth the reasons therefor, and requesting the Department's approval far the opening of an office in Punta Gorda, which would be coordinated with Petitioner's subunit in Fort Myers. Subsequent correspondence between the petitioner and the Department revealed that Petitioner's operational costs would most likely be reduced by the opening of the office in Charlotte County and that no change in services provided would occur. Petitioner further indicated that the only change being sought was an organizational change within the geographic areas being served and also indicated that the proposed office in Charlotte County would not be a branch office of any of Petitioner's subunits, but rather would be a full, separate subunit. On December 26, 1979, the Department advised Petitioner that although Petitioner would remain licensed to provide services to both Sarasota and Charlotte Counties from its Warm Mineral Springs subunit, the establishment of a subunit in Charlotte County would not only require a separate license in Charlotte County, but would also require Certificate of Need review. In that same letter, the Department further advised Petitioner that its determination constituted final agency action. To preserve its rights, Petitioner requested a hearing pursuant to Section 120.57, Florida Statutes. Thereafter, Petitioner submitted a letter of intent to the South Central Florida Health Systems Council, the health systems agency geographically responsible for processing Certificate of Need applications. Petitioner requested that agency's assistance in completing a Certificate of Need application, but was advised that that agency would be unable to assist in processing Petitioner's Certificate of Need application, since Petitioner was already providing services in the area for which the need would necessarily be determined. Petitioner accordingly contacted the Department to advise it that the health systems agency was unable to review the need for services when the services were being provided, and the Department advised Petitioner to go back to the health systems agency for a determination of need. Between the time that the Certificate of Need law first became applicable to home health agencies and the time that Petitioner communicated to the Department its intent to open an office in Charlotte County, the Department has approved the applications of several home health agencies to establish a subunit without obtaining a Certificate of Need, since the Department considered those agencies to be "grandfathered." The Department authorized Sun Coast Home Health Care to open a subunit in Venice in 1978 without requiring a Certificate of Need, as it permitted Central Florida Home Health Services to open subunits in Putnam County and in Lake County in 1978 without the necessity for obtaining a Certificate of Need prior to licensure. Further, the Department authorized Gulf Coast Home Health Services to open a subunit in Hernando County in 1978 without the necessity of obtaining a Certificate of Need for the reason that services were being provided by that agency to patients in Hernando County prior to May 1, 1976, although that subunit was not opened until 1979. The "grandfather" concept was again applied in a similar situation in the Department's Final Order in Global Home Health Services, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 78-1013. No evidence was presented by the Department herein in support of its argument that these agencies had all expressed an intent to open a subunit prior to the effective date of the Certificate of Need law applicable to home health agencies.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered authorizing petitioner to open a subunit office for home health services in Charlotte County, Florida, and issuing to Petitioner a separate license for that office if one be required. RECOMMENDED this day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles T. Collette, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 486 Tallahassee, Florida 32301 Richard I. Manas, Esquire Manas and Marcus 804 Greater Miami Federal Building 200 Southeast First Street Miami, Florida 33131 Herbert E. Straughn, Esquire Office of Community Medical Facilities Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building Two, Room 220 Tallahassee, Florida 32301 Ed Houck, Ph.D. Executive Director South Central Florida Health Systems Agency, Inc. 3801 Bee Ridge Road Sarasota, Florida 33582 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32381 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FLORIDA HOME HEALTH SERVICES, INC., and FLORIDA HOME HEALTH SERVICES-WEST, Petitioners, DOAH CASE NO. 80-206 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, /
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Villages of Westport Community Development District (Petition), dated September 4, 2003. The local public hearing was for purposes of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue in this matter is whether the certificate of Charles L. Dale should be revoked for failure to maintain good moral character under Section 943.1395(5), Florida Statutes (1985) and Section 943.13(7), Florida Statues (1985).
Findings Of Fact Charles L. Dale is certified as a correctional officer in the State of Florida under a certificate issued March 14, 1984 (Tr. 35) 1/ Charles L. Dale married Cynthia Dale and together they had two children. Mr. and Mrs. Dale separated and Mr. Dale was required by court order to make child support payments to Mrs. Dale (Tr. 10). After he fell behind in those payments he had been ordered to bring them current and a date was set by which he was to produce evidence of having made the payments.(Tr. 12). In July of 1985, the day before the date on which Mr. Dale was to produce receipts for having made the past due payments he met Cynthia Dale and drove her to the courthouse. While they were in the car he asked her to sign a receipt for the child support, but she would not sign because it has not been paid (Tr. 12). When she refused to sign the receipt, Mr. Dale put a gun to Cynthia Dale's head to get her to sign the receipts, because he did not want to be jailed for failure to make the child support payments (Tr. 13). Cynthia Dale was in fear that she would be shot if she did not sign the receipt (Tr. 13-14). Mr. Dale ultimately gave up his threats in frustration when Cynthia Dale would not sign the receipt (Tr. 14). Shortly after the incident, Mrs. Dale reported the matter to Officer Kathy Kilpatrick of the West Palm Beach Police Department (Tr.18). The report in this matter resulted in a communication from the police department to the Palm Beach County Sheriff's Office where Mr. Dale was employed (Tr.19). The matter was investigated by William Martin of the Palm Beach County Sheriff's Office for violation of departmental rules on improper use of firearms by Mr. Dale (Tr. 22-23). During the investigation by Deputy Martin, Mr. Dale denied that he had pulled his gun, pointed his gun or even touched his gun while with Cynthia Dale, and denied attempting to force her to sign a receipt for child support, although he did admit there had been a dispute regarding back child support payments. (Tr. 26). Detective Martin performed a polygraph examination upon Mr. Dale and during the post-test interview discrepancies in Mr. Dale's statement he believed the examination had disclosed (Tr.28). In that post-test interview, Mr. Dale admitted that he had pointed his gun at Cynthia Dale for about three minutes, after which time he opened the cylinder on the gun thus removing the bullets from the chamber where they could be fired (Tr. 30). The next day Mr. Dale resigned from the Palm Beach County Sheriff's Department (Tr. 31).
Recommendation It is RECOMMENDED that the certification of Charles L. Dale be revoked. DONE and ORDERED this 6th day of August, 1986, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1986.
The Issue Is Respondent TPE Structures of Bay County, Inc. (TPE Bay County) an employer as defined in Section 760.02(7), Florida Statutes (2003), conferring jurisdiction on the Florida Commission on Human Relations (the Commission) to consider the complaint filed by Petitioner William D. Hunt (Petitioner Hunt) and Petitioner Charles C. White (Petitioner White) against TPE Bay County?
Findings Of Fact Petitioner Hunt worked for TPE Bay County from August 13, 2003, through October 4, 2003. Petitioner White worked for TPE Bay County from August 11, 2003, through September 6, 2003. These are the relevant time periods in this inquiry. Both Petitioners were terminated from employment. According to the Amended Employment Charges of Discrimination, the Petitioners accuse their supervisor/manager Gary Williams of sexual harassment while employed with TPE Bay County. On August 21, 2000, TPE Bay County filed the necessary documents for incorporation with the Florida Department of State. It was incorporated as a Florida for profit corporation. As of April 11, 2002, the mailing address for the corporation was Post Office Box 18155, Panama City Beach, Florida 32417. Kenneth L. Karr is the registered agent for the corporation. He is the president and only director. Mr. Karr is the only shareholder in the corporation holding 400 shares. Mr. Karr's address is 7109 Lagoon Drive, Panama City Beach, Florida 32408. This information concerning TPE Bay County and Mr. Karr pertained during the relevant time contemplated by the Amended Charges of Discrimination referred to before, with the exception that Mr. Karr had a prior address in Panama City Beach, Florida. Mr. Karr filed with the Florida Secretary of State a year 2004 for profit corporation annual report. That report was filed April 26, 2004. It is one in a series of reports filed with that agency since the inception of the corporation. Earlier a corporation identified as TPE Structures, Inc. (TPE) had been formed. On March 26, 1999, the necessary documents were filed with the Florida Department of State to incorporate TPE. At times relevant, the principal address for TPE was 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address was Post Office Box 2066, Key West, Florida 33045. Mr. Karr serves as resident agent for TPE. His address is 7109 Lagoon Drive, Panama City Beach, Florida 32408 for those purposes. The 2004 TPE for profit corporation annual report was filed with the Florida Department of State on April 4, 2004. Before April 14, 2004, other for profit corporation business reports were filed with that agency. Mr. Karr was the president and only director for TPE from the inception and continues in those roles at present. He holds 500 shares in TPE that represents all shares. At times relevant Mr. Karr received a salary from TPE Bay County and from TPE. The Florida General Contracting license pertaining to TPE Bay County and TPE is No. CBC059131. At times relevant TPE Bay County and TPE maintained separate employee telephone numbers or contact lists. Those lists set forth the names and addresses for the employees. Persons whose names and addresses are related in the TPE Bay County list and the TPE list do not overlap. TPE Bay County is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE Bay County in its breakout of work performed is involved 60 percent in waterproofing, 25 percent in stucco and wood repair and 15 percent in painting and texture coatings. By contrast TPE is involved with 80 percent concrete spalling, and 20 percent painting. TPE Bay County does work in Bay County, Florida. TPE does work in the lower Florida keys in Monroe County, Florida. The work is done through separate company employees assigned to those jobs from the business locations where the jobs are found. The work is not done by exchanging employees who work for TPE Bay County and TPE respectively. TPE Bay County and TPE have separate managers whose job it is to estimate, promote, market, bid, solicit, and obtain contracts. Those managers do not communicate or deal with each other in the regular course of business. Mr. Karr's job duties in relation to his companies is to deal with corporate functions, set goals for profit, set goals for sales, deal with the respective managers of the two companies, deal with cash-flow, oversee accounting, sign checks, and visit job sites routinely. Mr. Karr hired the managers for the two locations and would be responsible for firing those managers. He has a similar role in dealing with a single accounting staff that serves both companies. Gary Williams serves as the manager for TPE Bay County. Stace Valensuelela manages TPE. Those managers are responsible for labor relations and safety activities. The managers are responsible for approving time cards for payroll purposes and establishment of hourly wages for employees, for billing customers and approving invoices for payment. The bookkeeping for the companies is done by Georgianne Davis who is overseen by Mr. Karr's wife. The business records for TPE Bay County Respondent are maintained at 7915 North Lagoon Drive, Panama City Beach, Florida 32408. The mailing address for that company is Post Office Box 18155, Panama City Beach, Florida 32417. The telephone number for TPE Bay County is (850) 235-4811. The fax number for TPE Bay County is (850) 230-3617. The e-mail address is ken@tpestructures.com. The business records for TPE had been maintained at 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address for TPE was Post Office Box 2066, Key West, Florida 33045. The telephone number for TPE was (305) 292-4111. The fax number for TPE was (305) 292-4615. The e-mail address for TPE is ken@tpestructures.com. After September 29, 2004, the Key West office closed and the records of TPE were sent to the Panama City Beach address related to TPE Bay County for storage purposes. TPE Bay County has assigned an FEIN number 59-3666286. TPE has assigned an FEIN number 65-0929637. TPE Bay County does business with Peoples Bank in Panama City Beach, Florida. TPE has transacted banking business with First State Bank in Key West, Florida. An occupational license was issued by Panama City Beach for TPE Bay County's operations in Bay County, whereas TPE's operations in Key West for Monroe County was issued a separate occupational license by that local government. According to employee information for TPE Bay County and TPE, at times relevant nine persons were employed by TPE Bay County and 20-plus persons were employed by TPE. At times relevant none of the persons employed by TPE Bay County worked on projects around south Florida. Similarly, none of the TPE employees worked on projects in the Florida panhandle. No funds related to TPE Bay County were used to pay the debts for TPE. No funds for TPE were used to pay debts of TPE Bay County. On advice of counsel Mr. Karr formed TPE Bay County as a separate corporation from TPE to limit debt liability. These arrangements were not intended in their design to avoid employment discrimination claims by employees. A business card presented as evidence bearing Mr. Karr's name sets forth TPE as the company. It provides the post office address for TPE Bay County and TPE in their respective locations at Panama City Beach and Key West. It gives the telephone numbers for TPE Bay County and TPE. It gives the fax number for TPE. It has a website listed which is www.tpestructures.com. A letterhead refers to TPE with a post office address for both the TPE Key West company and the TPE Bay County Panama City Beach company. Advertising in several telephone book listing services refers to "TPE Structures, Inc." and "TPE" while containing the TPE Bay County's 7914 North Lagoon Drive, Panama City Beach, Florida address and telephone number at 235-4811. Those listings bore the website address www.tpestructures.com with the contractors license number CBCO59131. Two separate telephone listings bore the name "TPE Structures, Inc.," with the initials "TPE" the 5970 Peninsula Avenue address for TPE and the telephone number for TPE as (305) 292-4111. A website address in those listings was given as www.tpestructures.com. A contact form soliciting information from outsiders refers to TPE, not TPE Bay County, at the location 7914 North Lagoon Drive, Panama City Beach, Florida 32408, with a telephone number of (850) 235-4811 and the fax number (850) 230-3617. That same form refers to TPE at telephone number (305) 292-4111 and fax number (305) 292-4615. It carries an e-mail addresses for general information as info@tpestructures.com and under the president as ken@tpestructures.com. An information sheet referring to the "TPE" office staff shows photos of Mr. Karr as founder and president, Suzanne Karr, Gary Williams as manager of Panama City Beach, and Georgianne Davis, secretary and accounting at Panama City Beach, Florida. On that same page with photos unavailable is a reference to Stace Valensuelela as manager of Key West and an unnamed secretary at Key West, Florida. A brief employment application form refers to joining the "TPE" team and sending the information to "TPE Structures, Inc." at 7914 North Lagoon Drive, Panama City Beach, Florida 32408. It provides the fax number (850) 230-3617 related to Panama City Beach. At times relevant TPE Bay County had filed with the Florida Department of Revenue its employers quarterly report. TPE Bay County has filed a Form 940-EZ with the Internal Revenue Service related to the Employers' Federal Unemployment (FUTA) tax return for calendar year 2003. TPE Bay County had filed a Form 941 Employers' Quarterly Federal Tax Return for the quarter ending September 30, 2003, with the Internal Revenue Service. In a document prepared that refers to the "TPE history", it is stated that in addition to the Key West office, TPE is proud to announce the opening of the Panama City Beach, Florida office at 7914 North Lagoon Drive on February 1, 2001. The phone numbers are (850) 235-4800 and fax (850) 230-3617 or toll free at 877-660-4811. A truck used in the business related to TPE Bay County had signs displayed referring to "TPE." One sign on the truck indicated the telephone number for TPE Bay County's business, which is (850) 235-4811. At times relevant employees working for TPE Bay County wore painter whites referring to "TPE Structures" that displayed the telephone numbers for Key West and Panama City Beach with a common 1-800 number. When Petitioner White was hired, Mr. Karr told him that he has trying to keep Key West going and was having monetary trouble in that location. From the hearing record nothing additional was said to Petitioner White on the subject. Mr. Karr told Petitioner Hunt that there was a Key West branch of his business. Notwithstanding this remark, Petitioner Hunt did not become personally familiar with the Key West operation.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Commission finding that it is without jurisdiction to proceed in these cases based upon Petitioners' failure to show that the Respondent is "an employer" as defined in Section 760.02(7), Florida Statutes (2003). DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of December, 2004. COPIES FURNISHED: Daniel A. Perez, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Kenneth L. Karr, President TPE Structures of Bay County, Inc. Post Office Box 18155 Panama City Beach, Florida 32417 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Care Together, a business owned by Mildred Sumpter, filed an application for licensure to operate an Adult Congregate Living Facility (ACLF) in Jacksonville, Florida, at 2149 West 39th Street. The application was denied by HRS in a letter dated October 10, 1991. The reasons for denial were stated to be: Failure to pay the correct licensure fee in violation of Sections 400.407(4)(a) and 400.411(1), Florida Statutes. Use of a different Social Security number than that used on three previous applications in violation of Section 400.411(2)(a), Florida Statutes. Failure to disclose an arrest in 1986 in violation of Section 400.411(2)(d), Florida Statutes. Mildred Sumpter is not of suitable character and competency to operate an ACLF based on her provision of false information, her financial information showing only $1,000 in liquid assets to cover the needs of ten residents, and her history of financial instability which resulted in her previous license revocation in 1986, all of which constitutes a violation of 400.414(2)(b), Florida Statutes. In the past Sumpter has been licensed for an ACLF at the same location as that at issue here. That license, in the name of Sumpter Westside Care, was held from 1983 to 1986. On all three applications personally prepared and filed by Sumpter for that ACLF, she used a Social Security number of 265-34-6918. On the application Sumpter prepared and filed for Care Together, she used a Social Security number of 265-34-7918. The financial documents related to Sumpter's financial ability to operate an ACLF, contained in Tab 3 of HRS Exhibit 1, establish the following: The only cash assets reported by Sumpter amount to $1,000. The $1,000 in cash assets is inadequate for ten residents. HRS advised Sumpter in writing that a legislative increase in the licensure fee became effective on July 1, 1991. Sumpter failed to submit the additional licensure fee. Sumpter's insurance for the premises issued by Universal Insurance Agency, Inc., was cancelled for nonpayment of premiums effective June 8, 1991. HRS routinely conducts a record search through the Florida Department of Law Enforcement regarding the applicant for any license. In this case, the record search revealed that Sumpter had been arrested for Aggravated Battery on March 1, 1986. Further investigation produced certified copies of the court records showing that Sumpter was adjudicated guilty of the above-cited offense of Aggravated Battery and was sentenced to two days credit for time served and required to pay a fine of $100 and court costs. The application filed by Sumpter for Care Together asks whether the applicant has "ever been arrested for--or convicted of--a crime involving injury to persons . . . (e.g. assault, battery, . . .)?" Sumpter answered "NO" to this question even though the application was sworn to be true and correct and was signed under oath by Sumpter. Sumpter's license to operate under the name of Sumpter Westside Care was revoked by a Final Order adopting a Recommended Order in DOAH Case Nos. 86- 2055 and 86-2103. The revocation was the result of numerous and repeated violations which had occurred at Sumpter's facility, many of which were caused by Sumpter's financial difficulties and financial mismanagement of the facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order denying the application for licensure filed by Mildred Sumpter for Care Together. DONE and ENTERED this 6 day of March, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of March, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-7536 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Proposed findings of fact 1-8 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 9 is unnecessary. COPIES FURNISHED: Mildred Sumpter Care Together 2149 West 39th Street Jacksonville, FL 32209 Michael O. Mathis Senior Attorney Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103 Tallahassee, FL 32308 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether the application of Thomas J. White Development Company for the establishment of a uniform community development district under Chapter 190, Florida Statutes, and Rule Chapter 42-1, Florida Administrative Code, should be granted.
Findings Of Fact The facilities and services that will be provided by the St. Lucie West Services District are the financing, constriction, ownership, operation, and maintenance of the surface water management and control system for the area, and necessary bridges and culverts. The land encompassed by the proposed development district is a development of regional impact. The final revised development order for the area was issued on February 27, 1989, by the City of Port St. Lucie. Exhibit 4. The land within the proposed district is composed of approximately 4,600 contiguous acres located in the city. The proposed district is bounded on the north and south by the city. The western and eastern boundaries are Interstate 95 and the Florida Turnpike, respectively. A map showing the location of the area to be serviced by the proposed district is found in Exhibit 2; a metes and bounds legal description of the proposed district is attached to the petition as Exhibit 1. The overall development to be serviced by the district will include a variety of single family and multifamily housing units, as well as commercial, industrial, and educational uses. A portion of the future land use map for the City of Port St. Lucie was received in evidence as Exhibit 3, and shows approved land uses for the St. Lucie West area. In the proceedings leading to the issuance of the development order, the city determined that the St. Lucie West development would be consistent with all applicable state, regional, and local comprehensive plans and policies. The proposed development of the district is consistent with the City of Port St. Lucie Comprehensive Plan: 1985, as amended. Exhibit 12. Ernest R. Dike, Jr. is the director of development of Thomas J. White Development Company. He is an expert engineer experienced in the planning, construction and management of large scale communities. Mr. Dike has substantial experience as a civil engineer, and holds an advanced academic degree in planning. He served as director of public works and as city engineer for the City of Port St. Lucie for the three years preceding his employment by White. As White's director of development over the last three and a half years, Mr. Dike assisted in the preparation of the petition; he also identified and explained the exhibits which were admitted into evidence. He assisted in crafting the development order for St. Lucie West which was adopted by the City of Port St. Lucie in February, 1987 and amended on February 27, 1989. Dike has been personally involved with the sales of land from White to other developers of property within the proposed district. All the owners of the real property to be included in the district have given their written consent to the establishment of the proposed district. Since the Thomas J. White Development Company purchased the approximately 4,600 acres which became St. Lucie West, Dike has directed the permitting and approval for all aspects of the project. In the design, White Development Company has accommodated the desires of St. Lucie County to obtain a spring training facility for a professional baseball team. White Development Company agreed to give the county 100 acres of land to build a training facility for the New York Mets. A predevelopment order for the stadium was obtained, which permitted the development of certain roads, a bridge over the Florida Turnpike, and an interchange with Interstate 95 which will all provide access to St. Lucie West These transportation facilities were completed without the use of any state or federal funds. None of these expenses will be born by the proposed district. The establishment of the district would not be inconsistent with any of the elements or provisions of the state comprehensive plan, the regional plan, or the local comprehensive plan. Creation of the district would be the best alternative available for providing water management and control facilities for the land encompassed by the proposed district. The South Florida Water Management District (SFWMD) and the City of Port St. Lucie have concluded that when fully developed, the land would discharge no additional water into the city's stormwater system as compared to the contribution of stormwater by the land made before it was developed by White. Mr. Dike also testified about the debt service required to amortize the debt on any benefit bonds issued by the proposed district, and the cost of operation and maintenance of the surface water control facilities to be constructed by the proposed district. Mr. Dike prepared a spread sheet entitled "Projected Statement of Cash Flow for the Years 1990-2000". (Exhibit 18). The estimated construction costs for water management facilities in the projection are reasonable. Based on White's plans for the district, and utilizing the assumptions for absorption of the residential and commercial space to be constructed, the benefit and maintenance taxes are projected to begin at $114 per taxable unit per year. These benefit and maintenance taxes will rise to no more than $170 per taxable unit per year in 1996. These projections are consistent with the testimony of Mr. Dike and of Dr. Henry Fishkind, an economist. All assumptions made in projecting future benefit taxes are reasonable. While these projections do not bind the district, which is not yet formed, and the district's electors could ultimately decide to assume additional responsibilities, the evidence shows that the benefit and maintenance taxes projected are adequate to pay the debt to be incurred by the proposed construction of surface water management facilities. Lester L. Solin, Jr., testified as an expert in land use planning. He was a planning consultant with the City of Port St. Lucie when the development of St. Lucie West by White Development Company was first under consideration, and worked with the city to formulate the overall development plan. St. Lucie West has been integrated into the future land use map for the City of Port St. Lucie Comprehensive Plan: 1985. Mr. Solin is also familiar with the state comprehensive plan. He has reviewed the application for development approval for the St. Lucie West development of regional impact. The proposed district would be consistent with the state comprehensive plan, Chapter 187 Florida Statutes. Mr. Solin is also familiar with the City of Port St. Lucie Comprehensive Plan: 1985 (Exhibit 12). The creation of the St. Lucie West Services District would not be inconsistent with any of the goals, objectives or policies in that plan. Peter L. Pimentel is the current executive director of the Northern Palm Beach County Water Control District (NPBWD). Mr. Pimentel testified as an expert in special district management, planning, staffing, reporting, and coordination with local governments. As the director of the Northern Palm Beach County Water Control District, he oversees a staff which works with other regulatory agencies on permitting, implementation, planning, construction and operation of water management systems. He coordinates construction with contractors, and engineers, and works with lawyers in carrying out the policies established by the district board of directors. The land encompassed by the NPBWD is approximately 200,000 acres. Mr. Pimentel has substantial experience, having worked as the executive director for two large independent special taxing districts, which are similar in structure and have similar powers as the community development district which White Development Company wishes to establish. Mr. Pimentel's testimony was especially persuasive due to his experience with water control entities. The proposed district is the best alternative available for financing, constructing, owning, operating and maintaining the surface water management and control facility for the area encompassed by the proposed district. It provides a more efficient use of resources, and provides the opportunity for new growth in the district to pay for its own surface water management, rather than imposing that cost on general government. The proposed district would not be incompatible with the capacity or uses of existing local and regional community services and facilities. The area to be served by the proposed district is amenable to separate special- district government. Henry H. Fishkind, Ph.D. testified as an expert economist about the economic consequences of establishing a community development district under Chapter 190, Florida Statutes, the economic consequences of financing the surface water management and control system through the use of tax exempt bonds, and the cost of operating and maintaining those structures by a community development district. Dr. Fishkind prepared the economic impact statement for the proposed district required by Section 120.54, Florida Statutes. The costs to the Florida Land and Water Adjudicatory Commission, and to state and local agencies in reviewing the petition are minimal. The costs to the City of Port St. Lucie and to St. Lucie County have been covered by the $15,000 filing fee which White paid to each of those governments. The cost to the City of Port St. Lucie once the district is operating would be negligible. The potential debt of the proposed district will not become general obligations or debts of the city or county governments. The cost of the surface water improvements will be paid by those who benefit from them. The economic impact statement is adequate, and meets the requirements of Section 124.54(2)(b), Florida Statutes. During the first six years, the proposed district would be controlled by Thomas J. White Development Company since White still would be the largest landowner. Tax exempt benefit bonds would be issued to construct the surface water management facilities. Both White and residents of the proposed district would share the burden of amortizing these bonds through benefit taxes. According to Dr. Fishkind, whose opinion is credited, from an economic perspective: The creation of the St. Lucie West District is not inconsistent with the state and local comprehensive plan; The land to be served by the proposed district is of sufficient size, is sufficiently compact and is sufficiently contiguous to be developed as a functional interrelated community; The proposed district is the best alternative for providing surface water management for the community, since other alternatives such as municiple service taking units or homeowners' associations are more expensive or more cumbersome; The area to be served by the proposed district is amenable to separate special-district government. All factors which are required to be considered in establishing a community development district under Section 190.005(1)(e), Florida Statutes, were analyzed by the witnesses presented by the Thomas White Development Company. Their testimony was persuasive, and the application meets all requirements of Chapter 190.
Conclusions Based on the record made, it is concluded: That all statements contained in the petition are true and correct; The creation of the proposed district is not inconsistent with any applicable element of the state comprehensive plan, or the City of Port St. Lucie Comprehensive Plan; The area in the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as one functional, interrelated community; The district is the best alternative for delivering water management services to the area to be serviced by the district, and would be superior to the creation of a municipal service taxing unit, a homeowner's association, or to providing water management by the general county government of St. Lucie County; The community development services provided by the proposed district will not be incompatible with the capacity or uses of existing local and regional community development services and facilities; The area to be served by the proposed district is amenable to separate special district government. Accordingly it is recommended that the Florida Land and Water Adjudicatory Commission grant the petition of the Thomas J. White Development Company and adopt a rule pursuant to Section 190.005(f), Florida Statutes (1987), establishing the St. Lucie West Services District. DONE AND ENTERED this 5th day of September, 1989, in Tallahassee, Leon County, Florida. William R. Dorsey, 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 5th day of September, 1989 APPENDIX A Case No. 89-0072 Witnesses Earnest R. Dike, Jr., 590 NW Peacock Loop, Port St. Lucie, Florida. Lester L. Solin, Solin and Associates, 901 Douglas Avenue, Suite 207, Altamonte Springs, Florida. Peter Pimentel, 5725 Corporate Way, Suite 203, West Palm Beach Florida. Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300 Winter Park, Florida. APPENDIX B Case No. 89-0072 List of Documentary Evidence Exhibit 1. Petition for Rulemaking filed by Thomas J. White Development Company, Inc., including seven exhibits. Exhibit 2. Location Map for the proposed St. Lucie West Services District. Exhibit 3. Future Land Use Map for the area Exhibit 4. Resolution 89-R7 of the city council of Port St. Lucie, Florida, which is the development order for the St. Lucie West Development of Regional Impact. Exhibit 5. Transmittal letter for the Petition for the establishment of the Services District to the City of Port St. Lucie and filing fee, and transmittal letter for the St. Lucie West Development District to the St. Lucie County Board of County Commissioners, and filing fee. Exhibit 6. Transmittal letter for the Petition for the establishment of St. Lucie West Services District to the Florida Land and Water Adjudicatory Commission. Exhibit 7. Letter from the staff of the Florida Land and Water Adjudicatory Commission determining that the Petition appears to satisfy the requirements of Section 190.005, Florida Statutes, and Rule 42-1.009 Florida Administrative Code. Exhibit 8. Resolution 89-R6 from the City of Port St. Lucie, Florida supporting the petition of the Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 9. Resolution 89-41 of the Board of County Commissioners of St. Lucie County supporting the petition of Thomas J. White Development Company, Inc. for the establishment of the St. Lucie West Services District. Exhibit 10. Proof of publication in the local newspapers and in the Florida Administrative Weekly of the Notice of the Hearing on the petition for the establishment of the community development district and notices to other interested persons. Exhibit 11. Copy of the State Comprehensive Plan Chapter 187, Florida Statutes (1987) Exhibit 12. Copy of the Comprehensive Plan: 1985 of the City of Port St. Lucie, Ordinance 85-102. Exhibit 13. Resume of Ernest R. Dike, Jr., P.E. APPENDIX B CONT. Case No. 89-0072 Exhibit 14. Permit granted to Thomas J. White Development Company, Inc. by the South Florida Water Management District for the construction and operation of a water management system. Exhibit 15. The prepared testimony Lester L. Solin, Jr. Exhibit 16. The resume of Peter L. Pimentel. Exhibit 17. The prepared testimony of Henry H. Fishkind, Ph.D. Exhibit 18. The additional prepared testimony of Mr. Dike including the computer generated spread sheet. COPIES FURNISHED: E. Lee Worsham, Esquire HONIGAMAN MILLER SCHWARTZ and COHN 1655 Palm Beach Lakes Boulevard Suite 600 West Palm Beach, Florida 33401 James C. Vaughn Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32399-0001 William Buezett The Governor, Legal and Legislative Office The Capitol, Room 209 Tallahassee, Florida 32399-0001 Carla Stanford, Esquire Department of Community Affairs 2740 Centerville Drive Tallahassee, Florida 32399-2100 David McIntyre, Esquire County Attorney 2300 Virginia Avenue Fort Pierce, Florida 34982 Roger Orr, Esquire City Attorney 220 South Second Street Fort Pierce, Florida 33450 Patty Woodworth, Director Land and Water Adjudicatory Commission Planning & Budgeting Executive Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
Conclusions THIS CAUSE is before me for entry of a Final Order. The reepatiment Clerk Order concluded that the Department's denial of petitioner's application for a license to operate a family day care home was within the Department's discretion and was supported by a the weight of the evidence presented at the formal hearing. No exceptions to the Recommended Order have been filed. The Recommended Order is approved and adopted. | Accordingly, petitioner's application for a license to operate a family day care home pursuant to chapter 402, Florida Statutes, is DENIED. DONE AND ORDERED at Tallahassee, Leon County, Florida, thise*f_ day of Ocfplec , 2005. Prbesoc 0. Don Winstead, Deputy Secretary Department of Children and Family Services RIGHT TO APPEAL A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, IN THE FIRST DISTRICT COURT OF APPEAL OR IN THE DISTRICT COURT OF APPEAL WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Laurel Hopper Monalisa Nunziata District 15 Chief Legal Counsel 836 26" Ave.. Department of Children and Family Services Vero Beach, FL 32960 337 N. Fourth Street, 3rd Floor Fort Pierce, FL 34950 Tom Peer Ann Cole, Clerk Child Care Licensing Supervisor Division of Administrative Hearing Department of Children and Family Services The DeSoto Building 337 North Fourth St. 1230 Apalachee Parkway 337 North Fourth St. Tallahassee, FL 32399-3060 Fort. Pierce, FL 34950 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail, this 2S day of Qc fob , 2005. . oft Agency Clerk nt of Children and Families Ne
The Issue Whether Petitioner, IMH Healthcare, LLC, was required to submit an application for acquisition of Westport Holdings Tampa, L.P., d/b/a University Village, a specialty insurer licensed to operate a facility that undertakes to provide continuing care, pursuant to section 628.4615, Florida Statutes, and, if so, whether Petitioner has proven its entitlement to approval of the acquisition application.
Findings Of Fact The Department of Financial Services (Department) is the agency of the State of Florida having authority, among its other duties and responsibilities, to enforce the provisions of the Florida Insurance Code. The Financial Services Commission is a separate and independent budget entity within the Department composed of the Governor, the Attorney General, the Chief Financial Officer, and the Commissioner of Agriculture. § 20.121(3), Fla. Stat. The OIR is the agency within the Financial Services Commission responsible for all activities concerning insurers and other risk-bearing entities as provided under the Florida Insurance Code. § 20.121(3)(a)1., Fla. Stat. Westport Holdings Tampa, L.P. (Westport), is a limited partnership formed and existing under the laws of the State of Delaware. Westport operates the University Village continuing care retirement community (CCRC) in Hillsborough County, Florida. IMH Healthcare, LLC, is a limited liability corporation formed on March 24, 2014, and is in good standing under the laws of the State of Delaware. CCRCs offer a continuum of services that generally consist of independent living units, assisted living units, and skilled nursing care on a single campus. Persons choosing to live in a CCRC will typically start out in an independent living unit. As their needs change, they may move to an assisted living unit in which they may receive assistance and supervision for their activities of daily living. As residents of the CCRC transition to needing more care due to age, injury, or infirmity, they are entitled to care in the skilled nursing facility. In order to become a resident of a CCRC, a person enters into an individual continuing care contract with the CCRC. That contract, which includes an up-front entrance fee, part of which may be refundable, and monthly payments, is treated as the equivalent of a policy of insurance. Therefore, the owners and operators are regulated as “specialty insurers” and are required to obtain certificates of authority from OIR. Westport currently holds a certificate of authority to operate the University Village CCRC pursuant to chapter 651, Florida Statutes. University Village accommodates the spectrum of care at a single campus. Independent living facilities consist of 446 apartments in two multi-story apartment buildings known as the Towers, and 46 patio homes known as the Villas. The assisted living facility and skilled nursing facility, which includes a memory care facility, are housed in a three-story facility, generally known as the “health center,” located across the street from the independent living facilities. The skilled nursing facility, containing 120 beds, is located on the first floor, with the remaining 110 assisted living units located on the second and third floors. University Village currently has more than 400 residents. A person seeking to acquire a “triggering” ownership interest in a CCRC with an existing certificate of authority must file an application for acquisition under section 628.4615. The application is subject to review under statutory criteria designed to ensure the protection of the residents and the public. Westport has two partnership percentage interests; a 99-percent limited partnership interest, and a one-percent general partnership interest. Westport is governed by the Westport Holdings Tampa Limited Partnership Limited Partnership Agreement, dated October 23, 2000, as subsequently amended. Prior to March 2014, Westport Holdings University Village, LLC, held the one-percent general partnership interest and Westport Senior Living Investment Fund, L.P. (WSLIF) held the 99-percent limited partnership interest. Larry Landry was the president and sole manager of both entities. During the period leading up to the filing of the acquisition application by Petitioner, management of University Village was performed by AgeWell Senior Living, LLC. The executive director was Tim Parker, who had served in that role for a lengthy period. In 2006, Westport entered into two notes payable totaling $32,250,000, both of which related to and were secured by University Village. The original maturity date of both loans was January 2010. The maturity date was extended to January 2012 by the original lender, Capmark Bank, conditioned, in part, on a $10 million principal reduction payment. In August 2012, Horizon LP UV Lender, LLC (Horizon), purchased the debt, the obligations of which Westport was not keeping current. The maturity date was extended by agreement multiple times, with the last extension expiring December 15, 2013. By 2013, OIR had become concerned with the lack of funds to catch up on deferred maintenance to the University Village buildings, which included extraordinary maintenance to roofs and chillers, HVAC equipment, and the like, and with the amount maintained in reserve for the deferred maintenance and refunds. By February 28, 2014, the amount of refunds payable was estimated at $1.7 million. In early to mid-2013, BVM Management, Inc. (BVM Management) became interested in acquiring the 99-percent limited partnership interest in Westport. BVM Management is a 501(c)(3) charitable purpose corporation. It holds assets in affordable housing and senior housing, and offers consulting services to approximately 40 skilled nursing facilities and continuing care retirement communities. BVM Management’s president is John W. Bartle, whose scope of work includes identifying special assets that are in some event of foreclosure or distress, usually with banks or bankruptcy courts, receiverships, and conservatorships. In mid-2013, Mr. Landry and Mr. Bartle, among others, met with representatives of OIR to discuss the proposed acquisition of Westport’s 99-percent limited partnership ownership interest by BVM Management. By that time, OIR was very engaged in the status of University Village, monitoring its operations on almost a monthly basis. It was discussed that the acquisition would allow for the infusion of capital into Westport and University Village to address OIR’s concerns. During that meeting, a decision as to whether the acquisition of Westport’s 99-percent limited partnership interest would trigger a requirement for the purchaser to file an acquisition application was deferred. BVM Management undertook to arrange for the issuance of tax-exempt bonds to raise the capital to acquire Westport’s 99-percent limited partnership interest and provide funding to meet OIR’s concerns. On August 11, 2013, BVM Management/Westport Holdings, L.P., entered into a Limited Partnership Purchasing Agreement to purchase WSLIF’s 99-percent limited partnership interest in Westport. On December 6, 2013, OIR advised Mr. Landry “that if BVM buys the [99-percent] limited partnership interest of Westport Holdings Tampa, LP, that it would not be required to file an acquisition application.” However, OIR requested the submission of a Corrective Action Plan to address BVM’s “financial stability, debt structure, the management company, marketing efforts, etc.” The parties to the Limited Partnership Purchasing Agreement attempted to close before the December 15, 2013, loan maturity date expiration. However, due to the inability of the bond underwriter to deliver tax exempt bonds at the expected price, the closing did not occur. As a result of the failure to close the sale of the 99-percent ownership interest, Horizon began to pursue foreclosure. Before that occurred, Horizon issued a forbearance through March 31, 2014. After consultation with the accounting firm that was performing the feasibility study and market study, Mr. Bartle contacted lenders that might be interested in financing the University Village property. He approached USAmeriBank and Columbia Pacific Investment Fund (CPIF) Lending, LLC, with a structure for financing that would require additional limited partners as purchasers instead of BVM Management. Thereafter, BVM Management located investors interested in purchasing Westport’s 99-percent limited partnership interest. On March 29, 2014, a Promissory Note was entered which provided that its $1 million principal sum and interest would be paid to “Westport Senior Investment Fund, Limited Partnership, . . . attention Larry L. Landry,”1/ either upon delivery by BVM University Village, LLC, of “the Second 2014 Amendments to the Limited Partnership Agreements of Westport Holdings Tampa Limited Partnership . . . and Westport Tampa II, Limited Partnership,” by which the general partnership interest would be transferred, or upon the Note’s July 1, 2014, maturity date. At the time, pursuant to a conditional Partnership Interest Transfer Agreement, it was anticipated that the Westport one- percent general partnership interest would be transferred from Westport Holdings University Village, LLC, to BHMSILFGP, LLC. On March 31, 2014, WSLIF sold its 99-percent limited partnership interest in Westport to a group of limited partners. Westport Holdings University Village, LLC, retained its one-percent interest in Westport as the general partner. The one-percent general partnership interest was not transferred to BHMSILFGP, LLC. The sale of the limited partnership interest was memorialized in the First 2014 Amendment of Limited Partnership Agreement (Tampa), by which the limited partnership interest was sold and conveyed by WSLIF to BVM University Village, LLC. Immediately thereafter, and as part of the same transaction, the 99-percent limited partnership shares were allocated to the limited partners as follows: BVM University Village, LLC -- 39.6% BHMSILF, LLC -- 26.4% IMH Healthcare, LLC -- 19.8% JF Consultants, LLC -- 13.2% Pursuant to the First 2014 Amendment of Limited Partnership Agreement (Tampa), a majority interest of the four limited partners are entitled to remove Westport’s general partner, approve or disapprove the appointment of a successor general partner, dissolve the partnership, and amend the limited partnership agreement. Also on March 31, 2014, the limited partners authorized Westport to enter into two loan agreements, the proceeds from which were used to retire existing debt, to fund repairs and renovations of independent living units, and for other purposes related to the CCRC. As part of the loan transactions, Westport Nursing, LLC, was “spun off” of Westport as an accommodation of the loan agreement with USAmeriBank described below. It is not known if that transaction was reported to OIR, and it was not explained whether the transaction affected Westport’s certificate of authority to operate the University Village CCRC. One loan, in the amount of $9.5 million, was taken out by Westport Holdings Tampa, L.P., and Westport Holdings Tampa II, L.P. The lender was CPIF Lending, LLC. The loan was secured by a mortgage on the independent living facilities. Loan proceeds of $5.6 million were used to pay existing mortgage debt, and loan proceeds of $1.75 million were disbursed to a “capital expenditure reserve” for facility improvements in the form of “replacements and alterations.” The remaining proceeds went to various expenses, including $1 million to the seller of the partnership interest. The other loan, in the amount of $15 million, was taken out by Westport Nursing, LLC. The lender was USAmeriBank. Proceeds were to be used for the benefit of the assisted living and nursing care facility. The loan was also used to fund $3 million of “minimum liquid reserve” (MLR) for University Village, which was then pledged as cash collateral to secure the loan. The cash collateral was not contributed by BVM or the new limited partners. The owner or operator of a CCRC is required to maintain the MLR in an escrowed account to cover expenses of the CCRC in the event of financial difficulties. The MLR consists of an amount equal to principal and interest payments due during the next 12 months on any mortgage loan or other long-term financing of the facility, including property taxes; an operating reserve equal to 15 percent of the total annual operating expenses; and a renewal and replacement reserve equal to 15 percent of the facility’s average operating expenses for the past three fiscal years. An owner or operator of a CCRC may satisfy the MLR requirements by acquiring a clean, unconditional, irrevocable letter of credit equal to the sum of the three parts. The letter of credit must be issued by a financial institution participating in the State of Florida Treasury Certificate of Deposit Program, must name OIR as beneficiary, and must be approved by OIR before issuance. BVM Management, because of its more established financial footings, was required to guarantee both loans due to uncertainty on the part of the lenders as to whether University Village could “turn-around” in a two or three-year period. Neither of the loans involved any contribution or investment of cash or assets by the new Westport limited partners or BVM Management. Rather, the loans were obtained, and costs paid, by pledging the equity in the independent living facilities and the assisted living and skilled nursing health center and collateralizing cash from the existing MLR. By April 2, 2014, OIR was made aware of the acquisition of the 99-percent partnership interest in Westport by the group of limited partners, and was provided with a copy of the First 2014 Amendment of Limited Partnership Agreement (Tampa). Although far greater than 10 percent of the ownership interest in Westport was transferred as a result of the transaction, OIR did not require that the entities acquiring the 99-percent partnership interest, either individually or as a group, submit an acquisition application. On April 18, 2014, OIR sent a request to Westport for a “Corrective Action Plan” to address BVM’s purchase of the Westport limited partnership interest, the uncertainty regarding ownership of the facility, a steady increase of overdue refunds, and delayed capital improvements to the University Village campus. BVM Management was retained by Westport to extricate the existing operator of the health center by canceling the lease and moving the personnel away from the property. By the fall of 2014, OIR determined the Westport MLR was underfunded by $300,000 to $400,000. Between April and December 2014, BVM Management commissioned a physical needs assessment (PNA) of the University Village physical plant. The PNA identified approximately $2.5 million in needed improvements over a five-year period. Projected needs included repair and replacement of roofs, HVAC units, guttering, and similar structural improvements. After the acquisition of the 99-percent partnership interest in Westport by the group of limited partners, $1.6 million was spent to remodel 106 residential units, with the improvements in the nature of new appliances and cabinetry, elevator repairs, and wireless internet. The improvements, though needed, were not those identified in the PNA. From April through December 2014, Westport Holdings University Village, LLC, remained as Westport’s general partner. During that period, Mr. Landry was an infrequent visitor to the University Village campus. OIR began to receive communications from residents of University Village that Mr. Bartle was acting as a spokesperson for University Village, and had taken a visible role in facility operations and capital improvements. Improvements at the facilities and changes in University Village policies and procedures were conveyed by BVM Management to Westport’s existing managing agent, AgeWell Senior Living, LLC, which then communicated instructions to Westport’s employees. BVM Management provided many services in the independent living portion of University Village, including oversight of construction and renovation, preparation of compliance reports due to lenders, oversight of the capital expenditure budget, approval of contracts, oversight of renovations, and assisting with marketing and public relations. On December 22, 2014, BVM University Village, LLC; Westport Senior Investment Fund, L.P.; AgeWell Senior Living, LLC; Westport Holdings Tampa, L.P.; and Westport Holdings Tampa II, L.P., entered into an Amendment to Promissory Note by which the due date for payment of sums under the note was extended, and by which the parties acknowledged that the management agreement with AgeWell Senior Living, LLC, would not be renewed upon its January 31, 2015, expiration. On December 29, 2014, Westport Holdings University Village, LLC, resigned as Westport’s general partner. A copy of the resignation was provided to OIR on that same day. On December 29, 2014, after learning of the resignation of Westport Holdings University Village, LLC, as Westport’s general partner, OIR sent an email to Mr. Bartle advising him that the “person or affiliated person” assuming the role of Westport’s general partner would be required to complete and file an acquisition application pursuant to section 628.4615(2). On January 2, 2015, OIR received a letter of notification regarding the proposed appointment of BHMSILFGP, LLC, as Westport’s new general partner. The submission requested a waiver of the requirement to file an acquisition application. OIR denied the request. The March 29, 2014, Second 2014 Amendment to the Westport Holdings Tampa Limited Partnership Limited Partnership Agreement was never executed, and BHMSILFGP, LLC, did not become the Westport general partner. On January 26, 2015, Westport’s limited partners elected Compliance Concepts, LLC, as Westport’s general partner. Compliance Concepts, LLC, was the managing member of BVM University Village, LLC, a 39.6-percent limited partner of Westport. On or about February 9, 2015, Compliance Concepts, LLC, filed an acquisition application with OIR. OIR determined the acquisition application to be incomplete. On February 11, 2015, OIR commenced an examination of the Westport CCRC. An OIR field staff examiner was assigned to University Village, and provided with office space in a University Village building. Upon arrival at University Village, the OIR examiner requested the books and records of the Westport CCRC. The records were not immediately produced. The evidence suggests that the reason for the delay in production was a desire on the part of Westport to have its attorney review the documents and approve their being turned over to the OIR examiner. On February 13, 2015, OIR issued an Initial Order of Suspension to Westport. The basis for the suspension order included the failure to immediately turn over financial records, as well as the operation and management of University Village by unapproved persons. Westport challenged the suspension order, thus staying its effect. On February 20, 2015, OIR sent a notice requesting additional information regarding the Compliance Concepts, LLC, acquisition application. The response was due on February 27, 2015. The notice did not request “background information issues,” which request was to be made under separate cover. On February 26, 2015, OIR made a request to DFS for the appointment of a receiver to manage the operation and finance of the Westport CCRC. At that point, with the request being in the nature of pending litigation, OIR required that all communications or meetings between Westport and OIR be arranged through counsel. On or about March 2, 2015, Compliance Concepts, LLC, resigned as Westport’s general partner, and Petitioner was elected by Westport’s limited partners as its general partner. As such, Petitioner was assigned Westport’s one-percent general partnership interest. The assignment was not accompanied by any monetary consideration. By letter dated March 2, 2015, OIR was informed that Petitioner, a 19.8-percent limited partner, had been elected as Westport’s new general partner. The March 2, 2015, letter also advised OIR that the Compliance Concepts, LLC, acquisition application would be updated and supplemented to reflect the change of ownership of Westport and its general partner. Along with its March 2, 2015, letter, Westport provided a response to the February 20, 2015, request for additional information regarding the Compliance Concepts, LLC, acquisition application. On March 6, 2015, Petitioner filed a “Statement of Acquisition Merger or Consolidation of a Specialty Insurer Pursuant to Florida Statutes 628.4615.” Petitioner was identified as the “Acquiring Company” and Westport was identified as the “Specialty Insurer Affected.” The application was submitted as an amendment to the application for acquisition filed by Compliance Concepts, LLC. In addition to information regarding Petitioner and its managing member, Eliyahu Freiden, the application relied in large part on information submitted in the Compliance Concepts, LLC, acquisition application. Mr. Freiden is Petitioner’s sole and managing member. Petitioner has no employees. As such, Petitioner’s competence, experience, and integrity are largely and fairly attributable to Mr. Freiden. Over the course of several months, OIR received a series of organizational charts offering different descriptions of Westport’s ownership and managerial structure. The revised acquisition application contained no financial information regarding Mr. Freiden or Petitioner. Mr. Freiden signed a Waiver of Public Hearing and Request for Approval and “respectfully request[ed] that the Director of the Office of Insurance Regulation approve the acquisition immediately.” OIR did not request additional information regarding Petitioner’s acquisition application. On March 27, 2015, the OIR director issued a notice of denial of the acquisition application. The notice provided that the denial was based on Petitioner’s failure to meet the requirements for approval set forth in section 628.4615(8)(a), (8)(b), and (8)(d)-(i). Mr. Freiden’s Educational and Employment History Mr. Freiden studied Talmudic law at Neveh Zion Talmudic University in Israel. He also studied biology and business management at Touro College in Brooklyn, New York. Mr. Freiden did not obtain a degree from Touro College, or elsewhere, choosing to terminate his studies to pursue employment. Since entering the work force, Mr. Freiden has held a number of positions with various companies. From January 2000 until June 2003, Mr. Freiden was involved in marketing and sales for the Carnival cruise line. From June 2003 until May 2007, Mr. Freiden was the principal and officer of Rental Quest, LLC, a property management company. During that period, the company managed hundreds of units of real estate in Connecticut. From May 2007 to August 2008, Mr. Freiden was employed as a senior account manager for HYC Logistics, a customs clearinghouse and shipping brokerage firm. His duties included sales and office management. From August 2008 to June 2012, Mr. Freiden was a senior account manager and supervisor for Primesource National, a company engaged in managing skilled nursing facilities. His duties included financial oversight of 30 skilled nursing facilities in the Midwest, specifically regarding their budgets, expenses, purchasing, and regulatory surveys. Mr. Freiden’s duties included on-site visits to the facilities. From June 2012 to November 2013, Mr. Freiden was an analyst and office director for Greystone Financial Group, a bank in Manhattan. His duties included property loan underwriting, and management of a team of loan originators. From September 2012 to the present, Mr. Freiden has been the principal and officer of Human Assurance, LLC, a credit reporting company engaged in providing background screening for healthcare facilities, daycare facilities, employment, and multi-family rental facilities. Mr. Freiden has no criminal history or record, has never been reprimanded by an employer, and has no negative professional disciplinary history. Mr. Freiden is heavily engaged in his community at his local synagogue, with the local YMCA, and with the creation of a girls’ Jewish high school. No evidence was presented that Mr. Freiden is not of reputable and responsible character. Mr. Freiden has no specific education, expertise, or formal training in insurance, or in CCRCs. He has never applied for an insurance license or a license in the healthcare field. He is not a healthcare professional. Mr. Freiden had no experience with operating a CCRC prior to his involvement at University Village beginning in March 2015. The focus on an applicant’s education and experience is for the purpose of determining the applicant’s background in the subject. The education and experience required of an applicant must be related to the applicant’s ability to operate and manage a CCRC facility, and not merely the applicant’s ability to hire others with the necessary education and experience to perform those duties. Mr. Freiden’s Background Information Section 628.4615(8)(e) provides that “natural persons for whom background information is required [must] have such backgrounds as to indicate that it is in the best interests of the insureds of the specialty insurer and in the public interest to permit such persons to exercise control over the specialty insurer.” Petitioner submitted a biographical affidavit and a fingerprint card for Mr. Freiden. The acquisition application form provides that “[b]ackground reports must be submitted by the selected background investigator vendor directly to OIR prior to or contemporaneously with the submission of the application filing.” The background investigation must be performed by an external company that has been approved by the National Association of Insurance Commissioners. The person submitting the application must pay for the background check and contact the approved vendor who is responsible for submitting the report to OIR. The report provides, among other items, background information from court records and other sources, and is crucial as verification of the information submitted by the applicant by an approved third party. The record of this proceeding contains a report generated by Accurint, a LexisNexis company, which includes information allegedly obtained from the Florida Department of Financial Services, as well as information from an undetermined source. The record is not clear as to whether the background information was provided by Petitioner or was accessed by OIR. In either event, the information does not comply with the established standards for background information. Petitioner’s Financial Capabilities The only assets of IMH identified in the record are its limited (19.8 percent) and general (one-percent) partnership interests in University Village. IMH was formed on March 24, 2014, one week before it acquired its limited partnership interest in Westport. Since the funding of the purchase of the limited partnership interest was accomplished through loans secured by Westport’s existing facilities, and guaranteed by BVM Management, and since there was no evidence of any cash contribution by the limited partners, IMH has no apparent financial investment in Westport. As part of the revised acquisition application, IMH submitted a letter from Ark Real Estate Group, LLC, which indicated that Ark Real Estate Group, LLC, “has the capacity to provide up to $5,000,000.00 (Five Million Dollars) in capital or subordinated debt to ensure that [IMH] has sufficient liquidity to support its role as limited partner. If you would like a formal term sheet for this commitment, please advise.” The financial stability and ability of Ark Real Estate Group, LLC, to provide such funds is unknown. The letter itself is vague, and does not establish Petitioner’s ability to access cash or credit. The information provided in the acquisition application was insufficient to establish the financial condition of IMH. Other Financial Issues The 2014 audited financial statement for Westport was due May 1, 2015. Westport did not timely file an audited financial statement and had not done so as of the final hearing in this matter. Although a draft report was provided, it did not include auditor’s notes necessary to evaluate the “going concern” portion of the audit. University Village is the only CCRC in Florida that did not timely file a 2014 audited financial statement. The statutory MLR for University Village is underfunded by approximately $400,000, and has been since fall 2014. On January 21, 2015, the CFO for University Village advised OIR that the MLR “is under funded by $370,324” and that there would be “a plan in place to have this shortfall funded within 30 days.” Petitioner has not addressed the MLR deficiency since becoming Westport’s general partner, despite the statement in the March 2, 2015, Response to Clarification Letter that the deficiency would be replenished within five business days of a calculation confirming a deficiency. Westport is currently subject to a targeted financial examination by OIR. The preponderance of the evidence indicates that Petitioner has not responded to OIR inquiries and has not provided access to requested information during the financial examination. Payments to vendors supplying goods and services to University Village are approximately $1 million in arrears, with some vendor invoices being more than 60 days past due. However, no services have been denied to residents. The March 31, 2014, loans secured by the University Village facilities, which loans total $24.5 million, come due in March 2016. BVM Management BVM Management, and its president, Mr. Bartle, have been extensively engaged in the operations of Westport, starting with BVM Management’s mid-2013 interest in acquiring Westport, to its guarantee of loans to buy Westport’s 99-percent limited partnership interest, and extending to Mr. Bartle’s participation as a representative of the acquiring entities in meetings with OIR. Beginning in April 2014 and extending through October 2014, BVM Management engaged in merger discussions between Westport’s designated facility manager, AgeWell Senior Living, LLC, and BVM Management beginning in April 2014 and extending through October 29, 2014. During that period, a lot of the work being done on the campus was coordinated between AgeWell Senior Living, LLC, and BVM Management. Although AgeWell Senior Living, LLC, had the management contract and was the OIR- identified overall management agent, BVM Management was participating in the plan of finance and the rehabilitation of the facility, and was involved in “extricating” the operator of the Westport health center. During that period, AgeWell Senior Living, LLC, personnel and BVM Management personnel were working in tandem on several projects. There were up to six BVM Management employees on the campus at any one time. Although Mr. Bartle was not the most frequent BVM Management employee on the campus, he tended to go to the board meetings or the finance committee meetings, and would make presentations for the health center and its financial condition. BVM Management’s presence on the facility grounds has remained active, particularly since the termination of AgeWell Senior Living, LLC, as the CCRC manager upon the expiration of its management contract, and the termination of the long-term executive director, Tim Parker. Because of Mr. Bartle’s ongoing involvement with the operations of University Village, and BVM Management’s substantial financial ties as guarantor for the two loans, OIR sought background information on Mr. Bartle as a person indirectly involved with the management of an acquiring entity. Petitioner’s acquisition application was absent any information regarding BVM Management or Mr. Bartle. In response to its inquiries for background and biographical information, OIR received only a handwritten note with the phrase “To be sent”. No further information was provided. As a result, OIR has little information regarding Mr. Bartle’s past employment, personal information, or financial background. Management and Consulting Services - NOVUM, LLC On May 15, 2015, after Petitioner became Westport’s general partner, Westport contracted with NOVUM, LLC, for “consulting management” services for the independent living facilities (Retirement Center) of University Village. NOVUM, LLC, has a background in nursing homes. NOVUM, LLC, has management contracts “with a couple of buildings” in Florida. The context of the testimony suggests that the services are performed at assisted living facilities, but the exact nature of the facilities was not described. Services provided include day-to-day operations, installing budgets, hiring and firing staff, training and development, and ensuring regulatory compliance. NOVUM, LLC, employs persons with education in science and healthcare management, and with experience in independent living facilities, assisted living facilities, and skilled nursing facilities. NOVUM, LLC, has provided services on behalf of Westport, including accounting, financial record keeping and reporting, marketing, sales, and attendance and participation in resident board meetings. NOVUM, LLC, has been engaged in hiring recommendations, including those for the executive director, director of sales, administrator of the assisted living facility, directors of nursing, and other staff positions. NOVUM, LLC, has Westport bank account signature authority, which it exercises in paying vendors, including NOVUM, LLC, itself.2/ Mr. Freiden regularly meets with NOVUM, LLC, employees who are on the University Village campus on a daily basis. After the termination of former executive director, Tim Parker, efforts to find a replacement have proven difficult. During the vacancy, Mr. Freiden testified, in response to a question as to whether the duties of the CCRC manager’s executive director were “going unmet,” that “I feel like we've got five executive directors. Besides Marc Flores, [NOVUM, LLC’s] chief operational officer, who's there every day and myself who act in that position, everybody knows they can grab someone from NOVUM or myself at any given time and we fill those shoes very well.” The preponderance of the evidence indicates that NOVUM, LLC, is performing managerial duties for University Village as described in Florida Administrative Code Rule 69O- 193.002(13). Rule 69O-193.007 requires that “[e]ach manager or management company must demonstrate that it meets the requirements of Section 651.022, F.S., and that the management agreement conforms with the cancellation requirements of Section 651.1151, F.S.” There is no evidence that Petitioner, Westport, or NOVUM, LLC, has made the requisite demonstration that NOVUM, LLC, meets the requirements of section 651.022.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services, Office of Insurance Regulation, enter a final order determining that IMH Healthcare, LLC’s, acquisition of the one-percent general partner ownership interest in Westport Holdings Tampa, L.P., was insufficient to meet the threshold requirement for an acquisition application pursuant to section 628.4615(2), Florida Statutes, and that the March 27, 2015, notice of denial of acquisition application be DISMISSED. It is, furthermore, RECOMMENDED that, if it is determined that an acquisition application is required when a one-percent general partner ownership interest in a CCRC is acquired, the Department of Financial Services, Office of Insurance Regulation, enter a final order determining that IMH Healthcare, LLC, failed to meet its burden of proving entitlement to the approval of the acquisition application, and that the application should therefore be DENIED. DONE AND ORDERED this 26th day of January, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of January, 2016.
