Findings Of Fact Petitioner and Respondent operate two of the four medical equipment suppliers located on Fowler Avenue in Fort Myers. The other two companies are Fort Myers Surgical Company and American Medical Oxygen Supply Company. Petitioner received an erroneous statement from Summit Medical Supplies, Inc., containing two invoice numbers for which Petitioner had no record. When asked for a copy of these invoices, Summit Medical Supplies, Inc., provided Petitioner with copies of invoices made out to Respondent, both of which had been marked paid on the face of the invoices. These two invoices were addressed to Home Oxygen Services and Medical Equipment, Inc., 4536 Fowler Avenue, Fort Myers, Florida (Exhibit 1). Petitioner's address is 3559 Fowler Avenue and the erroneous statement addressed to Home Medical Supplies, Inc., was sent to this address. On one occasion Petitioner received a call from Smalley Transportation regarding delivery of hospital beds to Petitioner which, it was soon discovered, were addressed to Respondent. In his testimony Shawn Bayes referred to several incidents involving customers and several incidents involving businesses which had contacted his company regarding equipment belonging to Respondent. None of these incidents had been observed by the witness but had been told to him by other employees. Timely objection to this testimony was made. On one occasion a suction pump had been delivered to a patient who later requested Petitioner to pick up equipment. Upon arrival it was learned Respondent had inadvertently picked up Petitioner's pump with the other equipment provided by Respondent. The suction pump was returned to the premises from which it had been picked up by Respondent. Respondent acknowledged there has been some confusion by customers regarding whose equipment they were using but that confusion was not limited to Petitioner and Respondent but also involved the other medical supply companies. Once explained to a customer, the confusion did not recur. All of the equipment supplied by the parties is clearly identified by tags on the property containing the name and address of the supply company. All of the medical equipment suppliers with businesses in Fort Myers supply similar equipment to predominantly elderly patients, approximately 50 percent of which are covered by Medicare. These patients are referred to the supplier by doctors, hospitals, and home health agencies.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Petition of Home Medical Equipment Company be dismissed. DONE AND RECOMMENDED this 12th day of April, 1985, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1985. COPIES FURNISHED: Shawn D. Bayes, President Home Medical Equipment Company 11899 90th Avenue North Seminole, Florida 33542 Vincent D. Sapp, Esquire Post Office Box J Fort Myers, Florida 33902 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent is a licensed respiratory care practitioner, having been issued license number TT 0006767 by the State of Florida. The National Board for Respiratory Care (hereinafter "NBRC") is a voluntary certification board for respiratory therapists and pulmonary technologists. The NBRC administers examinations including the Certified Respiratory Therapy Technician (hereinafter "CRTT") Examination. The CRTT is an entry-level examination for respiratory care practitioners. Obtaining a passing score on that examination and receiving a CRTT certificate is a requirement for licensure in many states. On July 19, 1992, Respondent took the CRTT examination. She obtained a passing score and received a CRTT certificate from the NBRC in July, 1992. Based upon Respondent's obtaining her CRTT certificate, Respondent was licensed as a respiratory therapist in the State of New Jersey. Subsequent to the July 19, 1992, CRTT examination, the NBRC received information that persons sitting for that examination possessed a copy of the examination in advance of the test date along with a purported "answer key." Based upon an investigation and on statistical analyses performed on the examination answers of every candidate sitting for that examination, the NBRC determined that Respondent was one of the individuals who had received a copy of the examination in advance of the test date. On November 24, 1992, the NBRC wrote to Respondent advising her of its investigation and determination. The letter specifically advised Respondent that the NBRC had invalidated the results of her CRTT examination and had so informed the State of New Jersey. That letter specifically instructed Respondent to return her CRTT certificate immediately and that the NBRC no longer recognized her as a Certified Respiratory Therapy Technician. The letter further notified Respondent that the NBRC's Judicial and Ethics Committee would be conducting a parallel investigation. The letter was sent to Respondent by certified mail, and she received it on December 8, 1992. On June 26, 1993, the Judicial and Ethics Committee of the NBRC held a hearing regarding the action to be taken against Respondent. By letter dated October 14, 1993, that Committee advised Respondent, by certified mail, that she was suspended from admission to all NBRC credentialing examinations for an indefinite period of time and that that decision would be reconsidered only if she returned her CRTT certificate as had been repeatedly requested of her by the NBRC. That letter further advised her that if requested by the State of New Jersey, the NBRC would re-test her for licensure purposes only but that under no circumstances would she be re-tested for national certification unless she returned her CRTT certificate to which she was not entitled and the Committee reconsidered her case. Respondent refused to return her invalidated certificate to the NBRC. She continues to refuse to return her invalid certificate, thereby precluding herself from any opportunity to retake the CRTT examination for national certification purposes. On July 28, 1993, the New Jersey State Board of Respiratory Care filed an administrative complaint against Respondent and others, seeking revocation of Respondent's New Jersey license to practice respiratory care for her failure to successfully complete the NBRC examination due to the invalidation of her examination results by the NBRC. By Order Granting Partial Summary Judgment entered December 22, 1993, the New Jersey State Board of Respiratory Care determined that Respondent lacked valid test scores from the NBRC, a prerequisite to licensure in the State of New Jersey. In a Supplemental Order entered on February 1, 1994, the New Jersey State Board of Respiratory Care determined that although Respondent's license to practice respiratory care in New Jersey was revoked, Respondent would be permitted to sit for the CRTT examination to be administered in July 1994, in order to meet licensure requirements in New Jersey. Pursuant to New Jersey's request, the NBRC scheduled Respondent to retake the July 1994 CRTT examination. Respondent failed to appear. Respondent has never retaken that examination. On February 24, 1993, Respondent submitted to the Florida Board of Medicine a licensure application seeking licensure by endorsement. In her licensure application, Respondent represented that she was certified as a respiratory care practitioner by the NBRC and that she was certified on July 19, 1992. As part of her application, Respondent submitted a copy of her CRTT certificate. She did not disclose that her CRTT certificate had been invalidated. Question numbered 5 of that application asked Respondent if she had ever been notified to appear before any licensing authority for a hearing on a complaint of any nature. Respondent answered that she had not. Although Respondent had been notified in September or October 1992 that the State of New Jersey was proceeding against her license, she did not disclose that fact on her licensure application. Respondent's answers to the questions contained in her February 1993 Florida licensure application were made under oath and bear her notarized signature, attesting that her answers are true, correct, and complete. On July 26, 1993, Respondent was licensed by the State of Florida as a respiratory care practitioner based, in part, on her invalidated CRTT certificate. Honesty is an important trait for a practicing respiratory care practitioner, and dishonesty in the practice of respiratory care is potentially dangerous to patients. Respondent was previously licensed by the State of Florida as a respiratory therapist, non-critical care status. That license was revoked on February 6, 1990, due to Respondent's submission of fraudulent information in her application for licensure. Specifically, when Respondent applied for that license, she did not possess either a high school diploma or a graduate equivalency diploma, a requirement for licensure. Respondent, therefore, submitted a copy of her husband's graduate equivalency diploma, which she had xeroxed and altered to reflect her name instead.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking her respiratory care practitioner license number TT 0006767. DONE and ENTERED this 30th day of January, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 30th day of January, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5183 Petitioner's proposed findings of fact numbered 2-21 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Respondent's proposed findings of fact numbered 3-5, 7, 9-11, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a recitation of the charges against her. Respondent's proposed findings of fact numbered 2 and 15 have been rejected as being irrelevant to the issues herein. Respondent's proposed findings of fact numbered 6 and 8 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 12 and 14 have been rejected as not being supported by the weight of the credible, competent evidence in this cause. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert B. Dell, P.A. 4801 South University Drive Fort Lauderdale, Florida 33328
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Jacob Anthony Sclafani suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Joseph August Sclafani and Rebekah Leigh Sclafani are the natural parents and guardians of Jacob Anthony Sclafani. Jacob was born a live infant on January 3, 2012, at Boca Raton Regional Hospital, which is a hospital located in Boca Raton, Florida. Jacob was a single gestation and weighed 3,289 grams at birth. Obstetrical services at Jacob’s birth were provided by Rachel K. Ciaccio-Stillwell, M.D., who was a physician participating in the NICA program at the time of Jacob’s birth. Jacob’s APGAR scores were 2, 5 and 7 at 1, 5 and 10 minutes respectively. Petitioners contend that Jacob suffered a birth-related neurological injury and seek compensation under the NICA Plan. More specifically, Petitioners contend that Jacob suffered oxygen deprivation during labor and delivery, which resulted in a brain injury, rendering Jacob permanently and substantially mentally and physically impaired. Respondent contends that while there was an event during labor and delivery which resulted in some oxygen deprivation to Jacob, that any such oxygen deprivation did not result in brain injury, and that any medical conditions of Jacob’s are not birth-related neurological injuries as defined in section 766.302(2), Florida Statutes. Respondent further contends that Jacob is not permanently and substantially mentally and physically impaired. There is no dispute about the facts and circumstances of Jacob’s birth. Mrs. Sclafani presented to Boca Raton Regional Hospital for induction of labor. Jacob was born via vacuum- assisted vaginal delivery secondary to a non-reassuring fetal heart rate pattern. The delivery was complicated by a shoulder dystocia. Umbilical cord blood gas pH was 6.84. The baby was depressed at birth requiring resuscitation. The baby was intubated and taken to the NICU, and was on room air within 24 hours. The record reflects that Jacob has received therapy services from Indiana First Steps, including developmental therapy, physical therapy, occupational therapy, and speech therapy. He has also received occupational therapy services from the Rehabilitation Institute of Chicago. Petitioners retained Paul Gatewood, M.D., to review Jacob’s medical records, as well as the opinions of NICA’s expert witnesses. Dr. Gatewood practices in obstetrics and gynecology in Ohio. Petitioners presented an affidavit of Dr. Gatewood, but did not present his deposition or live testimony. Dr. Gatewood’s affidavit concludes with an opinion in support of Petitioners’ claim that Jacob suffered a birth-related neurological injury caused by oxygen deprivation which resulted in brain injury.1/ Petitioners presented the affidavit of Dr. Michael H. Kohrman, who is one of Jacob’s treating physicians. Dr. Kohrman is board-certified in neurology, with a subspecialty in child neurology, and practices in Illinois. He also reviewed Jacob’s medical records and rendered an opinion that supports Petitioners’ claim that Jacob suffered a birth-related neurological injury.2/ NICA retained Dr. Donald Willis, a physician who is board-certified in maternal fetal medicine and obstetrics and gynecology. Dr. Willis reviewed the medical records related to Jacob’s birth to determine whether Jacob sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis’ report dated December 11, 2015, summarizes the relevant events of Mrs. Sclafani’s labor and Jacob’s delivery in pertinent part: [The mother] was admitted at term for induction of labor. Her cervix was dilated 1 cm and 75% effaced. Amniotic fluid was clear at time of rupture of the membranes. The fetal heart rate (FHR) monitor tracing during labor was reviewed. The baseline heart rate on admission was normal at 140 bpm with normal variability. There was a period of what appears to be uterine hyper-stimulation during early labor with FHR decelerations at about 80 bpm. This resolved and FHR returned to a normal appearing pattern. An abnormal FHR tracing becomes apparent about 90 minutes prior to delivery and continues until delivery. Vacuum assisted vaginal delivery was done due to the non-reassuring FHR pattern. The presenting part was at +2 to +3 station. Two pop-offs occurred prior to delivery. Delivery was then complicated by a shoulder dystocia. This was managed with McRobert’s maneuver and supra-pubic pressure. Birth weight was 3,289 grams or 7 lbs 4 oz’s. The baby was depressed at birth. Apgar scores were 2/5/7. Cord blood gas was consistent with acidosis with a pH of 6.84 and a base excess of -25. Resuscitation began with bag/mask ventilation. Intubation was done shortly after birth due to continued respiratory depression. The first gasp was at about 5 minutes. The baby was taken to the NICU for respiratory depression. Respiratory depression resolved quickly and the baby was on room air within 24-hours of birth during labor, delivery and most likely continuing into the immediate post delivery period. Neurology evaluation immediately after birth described “Perinatal Depression.” Head Ultrasound on DOL 3 was normal. Cultures were negative. No seizure activity was documented during the newborn hospital stay. The baby was discharged home on DOL 6. Head MRI was not done during the newborn hospital admission. In summary, there was an abnormal FHR pattern prior to birth that required vacuum assistance for vaginal delivery. The delivery was complicated by a shoulder dystocia. The newborn was depressed with Apgar scores of 2/5/7. Umbilical cord blood gas pH of 6.84 would be consistent with acidosis at birth. Respiratory depression for less than 24-hours was the only significant newborn complication. MRI and CT scans were not done during the newborn hospital course. Labor and delivery were complicated by a non- reassuring FHR pattern prior to birth and delivery was complicated by shoulder dystocia. This resulted in a depressed newborn with cord blood gas consistent with acidosis (pH 6.84). These findings would be consistent with an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and most likely continuing into the immediate delivery period. However, no medical records were available to indicate the suspected oxygen deprivation at birth resulted in any actual brain injury. At hearing, Dr. Willis explained that babies with significant oxygen deprivation during birth that causes brain injury will usually have a complicated hospital course. These complications may include seizures, low platelet counts, abnormal liver function studies, and acute renal failure. He noted that Jacob did not suffer seizures during the newborn hospital course or any of these other conditions typically seen with birth- related oxygen deprivation. At some point following his initial report, Dr. Willis reviewed an MRI report of Jacob which Dr. Willis believes “firms up” his original opinion that there is no evidence that the oxygen deprivation resulted in brain injury. He explained that oxygen deprivation can occur during labor and delivery that does not result in any significant brain injury. He further explained as to why he is of the opinion that the oxygen deprivation that did occur during labor and delivery did not result in brain damage: Number one . . . the baby did not show any of the clinical signs we see for brain injury, seizures, renal failure, liver function abnormalities. None of these things were present in the immediately born period. The other thing is, the head imaging, the ultrasound that was done, I believe was on day three, but shortly after birth, the head ultrasound was done and then an MRI was done at around 2 years of age, maybe a little under 2 years of age, was completely normal. It showed no abnormalities. So in order to -- it’s my experience, as well as kind of the standard medical philosophy that if you suffer a brain injury due to oxygen deprivation, significant brain injury due to oxygen deprivation, that there are going to be abnormalities on the MRI. Without abnormalities on the MRI, then you may have suffered some degree of oxygen deprivation, but that oxygen deprivation did not cause any substantial brain injury. When asked whether a normal MRI scan taken two years post-injury would be sufficient to rule out the presence of an oxygen deprivation injury two years prior, he replied “yes,” noting that any substantial oxygen deprivation that causes brain injury should have abnormal findings that persist. Dr. Willis explained that how quickly the child responds to resuscitation has a lot to do with the duration of the oxygen deprivation. He noted that Jacob had a fairly quick recovery from respiratory depression which indicates that the oxygen deprivation was probably not long-standing during labor and delivery. Dr. Willis’ opinion that there was an apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor or delivery which did not result in brain injury is credited. NICA also retained Dr. Michael Duchowny to evaluate Jacob. Dr. Duchowny is board-certified in pediatric neurology, with special qualifications in child neurology. He is a senior staff attending at Nicklaus Children’s Hospital and directs the neurology training program. Dr. Duchowny reviewed Jacob’s medical records and performed an independent medical examination of Jacob on January 13, 2016. In a medical report dated January 15, 2016, Dr. Duchowny expressed the following opinions: In Summary, Jacob’s neurological examination is significant for a complex motor presentation that includes hypotonia, ataxia and distal dystonic posturing. This primarily affects his fine motor coordination but prevents him from grasping objects with thumb-finger opposition. These findings are noted symmetrically in both the upper and lower extremities. Jacob also has a speech articulation deficit. In contrast, Jacob is functioning mentally at age level and his social development is also appropriate for age. I had an opportunity to review the medical records sent on December 29, 2015. They confirm Ms. Sclafani’s recollection of the perinatal events. Jacob’s Apgar scores were 2, 5 and 7 with acidosis noted on his arterial blood gas analyses. There was no accompanying evidence of multi-organ system involvement, and a head ultrasound performed on January 6, 2012 (DOL #4) was within normal limits. Today’s evaluation and record review do not provide evidence of a substantial mental impairment and Jacob’s pattern of cerebral palsy is more likely to be acquired prenatally, especially in light of his normal MR imaging study. I therefore do not recommend consideration for inclusion within the NICA program. Dr. Duchowny reaffirmed his opinions contained in his January 15, 2016, report when he was deposed on October 26, 2016. That is, he continues to be of the opinion that Jacob does not suffer from a mental impairment or a substantial physical impairment. And, he is of the opinion that Jacob’s pattern of cerebral palsy was more likely acquired prenatally. Regarding his physical examination of Jacob, Dr. Duchowny described Jacob’s level of cognitive functioning to be at or above age level. He described Jacob as a bright child who interacted in a manner that, from a mental standpoint, is quite appropriate for his age. He noted that while Jacob has a “slight motor articulation problem,” his speech was fluent and his communication skills were excellent. He testified that “it is very clear that [Jacob] does not have a substantial mental impairment. He’s not even close.” Dr. Duchowny’s opinion in this regard is credited. Regarding Jacob’s physical impairment, Dr. Duchowny acknowledged that it is permanent but not does not consider it to be substantial: Q: Okay. In your opinion, does Jacob suffer from a physical impairment? A: Yes, he does. Q: Is Jacob’s physical impairment permanent? A: I believe it is. Q: Is Jacob’s physical impairment substantial? A: I don’t believe so. Q: Why? A: Jacob does have motor issues and they are related primarily to -- to two areas: One is that he has no muscle tone, and the other is that he has problems with coordination. I think both of these are important problems, but he is, at the same time, able to walk, despite his incoordination, he did not fall. In fact, he actually can get around and do activities, maybe not as fluently as he should, but he can do them. I would regard that as not being within a substantial range. Children who have substantial motor difficulties typically are unable to do most functions; they require devices such as wheelchairs and they are just not ambulatory. Jacob, on the other hand, is despite his motor problems. Dr. Duchowny is also of the opinion that Jacob’s physical impairment is not consistent with a neurological injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury at birth. Dr. Duchowny explained that “[t]his kind of finding is not essentially due to mechanical injury or oxygen deprivation. This is a pattern of motor deficit known as either hypotonic or ataxic cerebral palsy. It is well-known to be a prenatally acquired developmental syndrome.” Dr. Duchowny’s opinions that Jacob does not suffer from a mental impairment, that his physical impairment is not within the substantial range, and that his pattern of cerebral palsy is more likely acquired prenatally are credited. The dispute in this case centers on whether, more likely than not, any oxygen deprivation to Jacob during labor and delivery resulted in brain injury and, if so, did any such injury result in Jacob becoming permanently and substantially mentally and physically impaired. The undersigned finds the testimony of NICA’s experts to be compelling. The greater weight of the evidence establishes, through the opinions of Dr. Willis and Dr. Duchowny, that while there was an apparent obstetrical event that resulted in loss of oxygen to Jacob’s brain during labor and delivery, that any such oxygen deprivation did not result in brain injury. Moreover, the record evidence does not support a finding that Jacob is permanently and substantially mentally and physically impaired. While not minimizing Jacob’s disabilities, Dr. Duchowny’s opinion, following his physical examination of Jacob, that Jacob’s physical impairments are not within the substantial range, is persuasive, and is credited. Moreover, there is no evidence to support a finding that Jacob suffers a mental impairment at all, much less a substantial one.
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY 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 28th day of October, 1994.
The Issue The issue involved herein is whether or not the Respondent 2/ is guilty of violations set forth hereinafter in detail as stated in the Second Amended Notice to Show Cause filed by Petitioner herein. If so, the secondary issue is what penalty, if any, should be assessed for such violations. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant:
Findings Of Fact Robert C. Beiter, Sr. is the trustee and legal owner of the subject premises. On July 24, 1981, Petitioner, through its sanitarian, Richard Bragg, made an inspection of the subject premises situated at 610 Northwest Seventh Avenue, Pompano Beach, Florida. The premises is a public lodging establishment and is licensed by the Division of Hotels and Restaurants under license no. 16- 345 OH. During the inspection by Mr. Bragg, the following was observed: Fire extinguishers were overdue for service as indicated by the pressure gauges thereon or by the lack of service tags. Additionally, fire extinguishers were not kept or maintained on each floor at minimum distances of 75 feet apart. The general condition of the building revealed that paint was peeling from the walls, windows and doors were broken, the roof was leaking and there were missing window screens. The premises needed extermination for reaches and rodents. Public lighting in the stairways and walkways were not properly maintained in that the light fixtures were either not working or bulbs were missing. Covers were missing from various electrical outlets. Outside garbage dumpsters were not of sufficient size and placement for the 62 units in the premises, all of which had kitchen and cooking facilities. (See Petitioner's Exhibit No. 1) Inspector Bragg made a second inspection of the subject premises in early September, 1981, and found no compliance with the previous inspections as cited in the July 24, 1981 report. A third visit was made by Mr. Bragg on October 28, 1981, and he found the premises in the same condition with the exception that the public lighting in the stairways was operable and found to be in compliance. Subsequent visits were made by Mr. Bragg on November 17, 1981, and approximately one year later on December 13, 1982, at which time he found the same conditions existed as his original inspection on July 24, 1981, with the exception that some painting had been done. (Petitioner's Exhibits 2, 3, 4 and 5). Respondent's Position Respondent submitted extensive documentary evidence to the effect that substantial monies had been expended to repair or otherwise maintain the subject premises. Most of the documents submitted were for bills subsequent to the Petitioner's initial inspection on July 24, 1981. An observation of the hills submitted indicate that repairs were made to windows, screens, plumbing and roofing. Harry A. Wright served as the office manager charged with the management of the subject property during 1981. Fire extinguishers on the subject premises are routinely inspected and replaced on an annual basis. Mr. Wright concedes that there are leaks in several of the units on the premises. However, a number of problems relating to the plumbing on the premises are caused by the high water pressure which forces leaks in the apartments. Tenants relay their problems to the management by a telephone call to the management company. The dumpsters on the premises are emptied twice per week. The Respondent uses a maintenance crew to place heavy items in the dumpster on the premises. Respondent acknowledges and admits to a problem with the outside lighting, citing as cause, tenants breaking the bulbs or pilferage of lighting fixtures for their apartments. Respondent has made efforts to correct the most pressing problems initially, and efforts are ongoing to correct the remaining problems. (Testimony of Harry A. Wright).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent be assessed a civil penalty of $100 each for the six conditions found herein to be violations of the rules of the Division of Hotels and Restaurants. The total of these fines, $600, shall be paid within thirty (30) days of the date of the Petitioner's Final Order with funds made payable to the Treasurer of the State of Florida for credit to the Hotel and Restaurant Trust Fund. It is further RECOMMENDED that if said fine is not paid within such period, the Division of Hotels and Restaurants' license No. 16-34 SOB for the Pinewood International Apartments located at 610 Northeast Seventh Avenue, Pompano Beach, Florida, be suspended for twelve (12) months, or until reinstated for good cause shown by the Division of Hotels and Restaurants. 3/ RECOMMENDED this 14th day of July, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1983.
