Findings Of Fact In April, 1993, Respondent took over operation of a residential facility known as the Linton Group Home. From that date until May 31, 1995, Respondent and her staff cared for developmentally disabled children in that facility on a permanent basis. The facility was located in Marion County, Florida. The facility operated in accordance with Chapter 393, Florida Statutes and in Chapter 10F-6, Florida Administrative Code. Historically, Respondent had assisted her mother in running the group home in the years 1987 and 1988 on a part-time basis. Respondent's involvement with the group home became permanent in 1989. The group home was opened by Respondent's mother in 1985. Respondent began operating the group home when her mother died. Respondent and two or three employees routinely worked at the group home. Respondent's principle income in the time period at issue was derived from the operation of the group home facility. Following a facility inspection by Petitioner's employee conducted on May 8, 1995, to consider license renewal, the group home was granted a conditional license for the period June 1, 1995 through June 30, 1995. The license was not renewed beyond June 30 based upon the allegations previously described. The decision not to renew the facility license for the annual period was made on June 29, 1995 and notice was provided to Respondent. As of June 30, 1995, seven boys were in residence in the group home ages 13 to 18, with varying levels of disability concerning their level of function both physically and mentally. The clients residing in the facility required and had been given constant supervision. However, they were not a threat to run away from the home. At relevant times, in the event that a client was home from school someone was available to supervise the client. At relevant times Respondent's personal residence was one and a half miles from the group home. Respondent lived there with her children and husband, Willie Smith. The children were not those of Respondent and Mr. Smith. When Respondent took over ownership and operation of the group home she and other existing employees at the facility had been qualified to provide direct services to the clients through a background screening process. To successfully complete the background screening a prospective direct service provider must submit a fingerprint card, and affidavit on good moral character, undergo screening by local law enforcement, the Florida Department of Law Enforcement, and the FBI through use of the fingerprint card and prior to October 1, 1995 scrutiny by the Petitioner concerning the State child abuse registry. At relevant times Respondent understood that she was responsible for securing all the necessary information to do a background screening. She further understood that she had seven days from the time at which a person was employed at the group home to submit the background screening information for assessment. For a time she did not realize that the operator was responsible for paying a fee for processing the fingerprint card. When the May 8, 1995 inspection was made Respondent became aware that a fee was assessed for that process. At relevant times Respondent was aware that appropriate background screening was necessary to maintain the group home license to operate the facility in Florida. Respondent understood that if background screening information was not submitted that an existing license to operate the facility could be revoked or the license could be denied upon the annual request for renewal. In relevant times to the proceeding Hilda Spotts worked in the Petitioner's Developmental Services Program Office. That office serves developmentally disabled children ages 3 to adult and is involved with group homes in which those children reside. Ms. Spotts was involved with the licensure of group homes in District 13, to include Respondent's group home. In June, 1994, Respondent called Ms. Spotts to inform Ms. Spotts that Respondent had married Mr. Smith. In that conversation Ms. Spotts asked Respondent for information to perform a background assessment on the husband to include a fingerprint card and a completed HRS Form 1651 which is associated with the screening process. Ms. Spotts did not receive the information to perform the background screening in 1994. Instead, there was a second conversation in which Respondent told Ms. Spotts that the husband would not be involved in the daily activities of the group home as an employee of the home. On that occasion Ms. Spotts gave a packet to the Respondent that would be needed to perform the background assessment. However, Ms. Spotts told the Respondent that Ms. Spotts would check with another employee of Petitioner to see if the husband needed to complete those forms. The conversation was concluded on the basis that Ms. Spotts would inform the Respondent concerning the necessity for Mr. Smith to undergo background screening. Within the first six months of the marriage between Respondent and Mr. Smith, the husband did not work at the group home. His employment began before the May 8, 1995 survey at which the Respondent stated that the husband was doing lawn work and maintenance at the group home. At that time Respondent held to the opinion that the situation with her husband was no different than other maintenance people who worked at the group home and who were not required to have background screening conducted. Later Ms. Spotts called the Respondent to tell her that the husband did not need screening but Ms. Spotts reminded the Respondent that the husband needed to be listed for purposes of the annual license review. The next annual review beyond that point in time was performed on May 8, 1995. Ms. Spotts had made the determination that the husband did not need screening at that time based upon her analysis and conversations with personnel at Petitioner's District 3 office in Gainesville, Florida. Ms. Spotts had further stated that if the husband began working in the home he would need to be screened. Respondent added Mr. Smith to the list of employee names on Form 1651 in the annual renewal application dated April 20, 1995 and signed by Respondent. This was consistent with the request by Ms. Spotts that Respondent report Mr. Smith's name on the annual renewal request. Beyond those persons who were working at the group home when Respondent became the owner/operator, Respondent submitted three additional names for background screening. Among the persons who were screened was Brenda Wilson whose screening information was submitted to Pat Joyner an employee of Petitioner at District 3 who is responsible for background screening compliance in that district and District 13. Ms. Wilson was qualified and there exists no dispute concerning her background. Ms. Joyner performs background screens based upon the availability of the person's name, date of birth, social security number and fingerprints. Another employee for whom Respondent submitted background screening information was Sam Graham. This information was sent to Ms. Spotts. Mr. Graham worked for only one week at the facility. No response was received concerning his background screening. Before information was submitted for background screening on Mr. Graham Respondent was told by Ms. Spotts that the Petitioner's Districts had been separated. That referred to Districts 3 and 13. In fact in approximately the spring of 1994 five counties were separated from District 3 and placed within District 13. Marion County was among those counties. After the District separation, Ms. Spotts told Respondent that in the future that the Linton Group Home would not have any dealings with District 3 and that Respondent should deal with District 13. At that time Ms. Spotts did not tell the Respondent where to send screening requests. Respondent assumed that the screening requests should be forwarded through Ms. Spotts in that Ms. Spotts, had provided Respondent with forms needed to perform the background screening. Another employee for whom information on background screening was submitted was Michael Ivey. The information for Michael Ivey was sent to District 13. Before that information was sent Respondent did not call Ms. Spotts to ask where to send the information. Respondent again operated on the assumption that the Linton Group Home was no longer under the regulatory auspices of District 3 in Gainesville as Ms. Spotts had indicated. Therefore Respondent thought that the information for Mr. Ivey should be sent to Ms. Spotts in Belleview, Florida, where Ms. Spotts had her office. Ms. Spotts has no record of receiving the background screening information on Mr. Ivey, nor does the Petitioner. Prior to the submission in the Ivey case requests for background screening had been sent to the District 3 office in Gainesville, Florida, responsible for background screening. Mr. Ivey worked at the Linton Group Home as a direct service provider from late December, 1994 until mid May, 1995. The record of submission of materials to perform the background screening on Mr. Ivey are as reflected in the files maintained by the group home and examined by Ms. Spotts in the May 8, 1995 inspection for license renewal. In that file there is a copy of a document referred to as a law enforcement check which establishes that Mr. Ivey's record was cleared by the Alachua County Sheriff's Office. Mr. Ivey had also executed an affidavit contained in his personnel file at the group home related to his good moral character. In the group home the files is a copy of the Form 1651 shows that Michael Ivey signed as a applicant for the background screening check and included his name, date of birth and social security number together with his present address. The second part of Form 1651 that is "to be completed by employer, HRS representative or facility requesting background check" and characterizes the nature of the employment was not executed nor signed. Moreover, the requestors name, telephone number, street address, county in which the requester is located and the date upon which the applicant had been employed was not executed. There are occasions in which Petitioner's employees and counselors submit requests for background screens as opposed to that information being requested by the employer. However, it was necessary for Respondent to execute the Ivey documents as the requesting employer in that no prior arrangement had been made to have Ms. Spotts or some other employee for the Petitioner execute the form as a requesting entity. Although it may have been appropriate to assume that the proper place to transmit the request for background screening for Mr. Ivey was through Ms. Spotts, it would be inappropriate to assume that Ms. Spotts would understand or be expected to complete Form 1651 to include information as the requestor for background screening. The practice of not executing Part II to Form 1651 which calls for the employer or an HRS representative or the facility to request the background screening check and sign that request was a practice that Respondent had learned from her mother who formerly operated the Linton Group Home. That practice was carried forward in the submission of the Ivey request for background screening. Respondent did not believe that she needed to indicate that she was requesting the background screening for Mr. Ivey by indicating that Respondent was the employer. Notwithstanding the fact that Part II to Form 1651 was not routinely executed, it was the custom by the Linton Group Home to send other information with the request for background screening to indicate that the screening request related to employment with the Linton Group Home. Related to the request for background screening Respondent acknowledges that the expectation was that information would be returned from Petitioner indicating whether the employee had cleared screening. Within the group home files inspected on May 8, 1995, was found a copy of Mr. Ivey's fingerprints. The law enforcement check made by Alachua County bore an address for Petitioner in Wildwood, Florida. The fingerprint card bore an address for Petitioner in Gainesville, Florida. Both addresses were affixed to forms provided by Petitioner. Although information for Mr. Ivey's background screening had Petitioner's address at Wildwood, Florida, and Gainesville, Florida, on the forms provided by the Petitioner, Respondent recognized that the information for background screening on Mr. Ivey was to be sent to one location. She chose to send it to Ms. Spotts. Respondent was aware that compliance information concerning the background screening request was customarily received from the background agencies notifying the Respondent whether an employee had a "cleared" background. Nonetheless, Respondent did not receive information concerning clearance for Mr. Ivey beyond the clearance by the Alachua County Sheriff's Office which was received on December 7, 1994, the same date that the law enforcement check form provided to that department was signed by Mr. Ivey. In the May 8, 1995 inspection the information that was found concerning background screening for Mr. Ivey did not indicate that he had been cleared by appropriate authorities by placing a stamp on all pertinent requests with the word "clear". The exception being the return from Alachua County Sheriff's Office. When Ms. Spotts conducted the May 1995 inspection at the group home, she asked Respondent about the person or persons who was responsible for conducting repair work at the home. Respondent answered that her husband performed those duties. Respondent indicated that her husband worked both inside and outside the group home, to which Ms. Spotts responded that the husband needed to be screened during this relicensure. Respondent told Ms. Spotts that the husband cut grass at the group home. Respondent told Ms. Spotts that Respondent's husband was repairing walls and halls inside the house. In discussion concerning the need to do a background check for the husband the Respondent told Ms. Spotts that the husband did work at the home when the children were not there. In response Ms. Spotts told the Respondent that children might come back from school while the husband was there. Following this conversation about the need to have the husband checked for his background Ms. Spotts was persuaded that the Respondent had agreed to those arrangements. Those remarks were followed by correspondence dated May 16, 1995, in which Ms. Spotts informed Respondent that the Respondent needed to have a complete background screening check performed on the husband. With this correspondence Ms. Spotts enclosed a local law enforcement check form and advised the Respondent to sign the background check form and have her husband sign and return the executed information within ten days with an appropriate fee of $32.00 for processing the fingerprint card. The correspondence reminded the Respondent that the issue of background screening for the husband was important and needed prompt attention. Respondent received the correspondence. Respondent did not send Ms. Spotts the background screening information as requested. Ms. Spotts had in mind promptly processing the information on the husband to facilitate granting the Respondent a 90-day license pending the processing of information about the husband's background. When Ms. Spotts conducted her inspection Mr. Ivey was present on that day. After Ms. Spotts had examined the information in the personnel file for Mr. Ivey that has been described she asked the Respondent about Mr. Ivey's employment status. Respondent indicated that Mr. Ivey had been employed since January, 1995. Ms. Spotts noted that there was no abuse registry clearance information or local information other than Alachua County Sheriff's Office information or FBI information concerning clearance of Mr. Ivey available in the records at the group home. The group home is expected to maintain clearance information. Petitioner does not maintain clearance information concerning group home employees. In response to Ms. Spotts' questions about Mr. Ivey's status Respondent told Ms. Spotts that Respondent had sent the clearance request forms to Ms. Spotts. The information sent by Respondent to Ms. Spotts when seeking background screening for Mr. Ivey included an application form provided by HRS, an affidavit of good moral character, a Sheriff's statement, a fingerprint card, HRS Form 1651 and information concerning rules of the Linton Group Home. On May 8, 1995, when Ms. Spotts informed Respondent that the information related to Michael Ivey's background screening was incomplete this was the first time that Respondent realized the deficiency. Ms. Spotts' view is that information concerning background screening and clearance for employees in a group home is sent to Ms. Joyner in District 3, whereas information concerning the owner/operator clearance goes to Ms. Spotts at District 13. It is not clear that Respondent understood this distinction. It is not clear whether the Ms. Spotts eventual instruction to Respondent to send background information to screen employees to Ms. Joyner occurred before or after information was sent to Ms. Spotts related to screening for Mr. Ivey. Notwithstanding the special disposition of the background screening for the husband which was requested in May, 1995, to be processed through Ms. Spotts to accommodate the issuance of a 90-day license to the Respondent, earlier in 1995 Ms. Spotts had told the Respondent that the background screening for employees at the group home should be processed through Ms. Joyner. Ms. Spotts was not sure what the Respondent's understanding of the appropriate place to send background screening information for employees prior to this 1995 conversation. Not finding sufficient information concerning Mr. Ivey, Ms. Spotts asked the Respondent to re-submit the request for clearance for that employee. As with the information pertaining to the husband, Respondent was instructed to send the information to Ms. Spotts to accommodate the issuance of a 90-day license pending the processing of information about Mr. Ivey's background. Respondent did not re-submit information for background screening for Mr. Ivey. Ms. Spotts provided Respondent with necessary forms to submit for background screening for employees. At the end of May, 1995, Ms. Spotts called Respondent to inquire concerning the submission of background screening information for the husband and Mr. Ivey. Respondent told Ms. Spotts that the husband had gone to Nevada around May 19, 1995, and that Mr. Ivey had quit on that date. During this conversation at the end of May, Respondent told Ms. Spotts that Respondent was not sure when the husband would return from Nevada. In fact, Respondent knew that her husband was in jail based upon the domestic violence complaint that Respondent had placed against her husband. In this conversation Respondent did not wish to talk with Ms. Spotts because Respondent had visitors in her home. She did not tell Ms. Spotts about the husband's incarceration in this conversation because she did not want the people who were visiting and standing in the room where she was on the phone to hear that her husband was in jail. In the conversation in late May, 1995, Ms. Spotts told Respondent that Respondent had 30 days to "rectify the problem" or loose the license for the group home. This is taken to mean obtaining background information for the husband and Mr. Ivey. In a subsequent conversation around June 7, 1995, the Respondent told Ms. Spotts that the husband had been in jail and was no longer living in the family home. Respondent also told Ms. Spotts that the Respondent was involved with paying for a motel in Ocala, Florida, for the husband's residence. In this conversation, Respondent informed Ms. Spotts that her husband had been in jail because of a domestic dispute. Respondent also told Ms. Spotts that she did not know when she could get the necessary information from the husband to process the background screening requested by Ms. Spotts. The problem which Respondent explained to Ms. Spotts concerning the background screening for the husband was the inability to get a copy of the husband's fingerprints. Respondent remarked in that conversation that the husband had been doing a little work around the house and working in the yard. Respondent also remarked that she did not think that it was necessary to have background screening but she would have it done when her husband was released from jail. Respondent made no mention concerning the possibility that her husband would return to work at the group home. The husband was released from incarceration on June 8, 1995 and returned to jail on June 13, 1995 and was released again on August 25, 1995. In the June 7, 1995 conversation, Respondent asked if Elsa Alvarez from the Petitioner agency had contacted Ms. Spotts about the pending investigation of Respondent and her children associated with the domestic violence case. In the conversation the Respondent told Ms. Spotts that the Respondent had a restraining order against her husband but that the restraining order did not pertain to the husband and his ability to access the group home. Ms. Spotts suggested that the restraining order be modified to place the additional prohibition on the husband. Respondent indicated that she would pursue this suggestion with her lawyer. The restraining order was never modified to prohibit the husband from having access to the group home. Once Ms. Spotts found out that the Respondent had acted to restrain or enjoin the husband from acts directed to the Respondent she asked that a copy of the injunction be posted at the group home. Respondent complied with that request. In addition to placing the May 31, 1995 restraining order on a bulletin board at the group home, Respondent told the staff members that her husband was not to "come around". Given the pendency of the background screening for the husband, a conditional license was issued to the group home effective June 1, 1995, with a 30-day license period. The basis for this decision was premised upon Ms. Spotts' belief that the husband would return from his trip to Nevada and be employed at the group home. On June 5, 1995, Ms. Spotts sent Respondent correspondence indicating that the license for the group had been renewed for the 30-day period pending completion of the background information on Respondent's husband. That correspondence indicated that a meeting would be held with the Respondent on June 13, 1995, to discuss the future licensing of the group home beyond the expiration of the conditional license. Respondent received this correspondence. The correspondence was sent before Ms. Spotts became aware that Respondent's husband had been placed in jail. Ms. Spotts continued to insist on a background check on Mr. Smith because she was persuaded by the June 7, 1995 conversation with the Respondent that the Respondent and the husband would reconcile their differences. Throughout the licensing process Ms. Spotts is without knowledge concerning the husband staying in the group home or serving or supervising the clients at that home. Ms. Spotts is not aware of any complaints about Mr. Ivey while he served as a provider at the group home. Respondent's husband never stayed at the group home or had any direct contact with the residents clients. In addition to the work previously described, the work that he did at the group home included changing air- conditioning vents, and light bulbs and one plumbing repair. The husband also moved a bed at the group home while the Respondent was in attendance. On June 13, 1995, Ms. Spotts was informed that the Respondent was getting a dissolution of the marriage to Mr. Smith. In that conversation Respondent told Ms. Spotts that the Respondent did not want the husband around her daughters in their family home. In that connection, the husband's background had been checked in association with the domestic violence situation in the Respondent's home, during which it was discovered that the husband was on the child abuse registry for sexual abuse. Before that time Respondent was unaware that her husband had been named in the abuse registry. That discovery contributed to the decision by the Respondent to seek dissolution of their marriage. Ms. Spotts in conjunction with Carole Perez, Program Administrator for Developmental Services at District 13, decided to not hold the June 13, 1995 meeting to discuss further licensure in view of problems perceived with the background screening related to Mr. Ivey and Respondent's husband, having in mind the high level of dependency by the clients that were served by the group home, some of whom were unable to communicate. In their opinion those circumstances demanded providers who met all necessary requirements to include background screening. In determining to deny license renewal Ms. Spotts and her supervisor Carol Perez were concerned about Respondent's honesty in cooperating with Petitioner in having a background screen performed on the husband, and whether the cooperation was not forthcoming as a means by Respondent to avoid the possibility that the husband would not be cleared and the possibility that Respondent's husband would have continuing contact with the group home. The Petitioner in the person of Ms. Spotts and Ms. Perez decided to cancel the June 13, 1995 meeting to consider license renewal after consultation with representatives of the children and families program who were conducting an investigation about the group home. Respondent was notified of the cancellation. The children were removed from the home and placed in other licensed facilities or returned to their respective homes on June 20, 1995. At hearing Respondent admitted that there was a possibility that the husband would have returned to her personal home following his incarceration. That possibility ended when the Respondent learned for the first time that her husband was a confirmed child abuser as recognized by the child abuse registry in Florida. This knowledge came about based upon an investigation into the domestic violence situation that has been described. Respondent's husband had been incarcerated based upon the alleged domestic violence against Respondent. That circumstances arose in May, 1995, before Respondent's husband was served with an injunction for protection. The service was made on May 22, 1995. On May 31, 1995, an injunction order for protection was entered in the Circuit Court, Fifth Judicial Circuit in and for Marion County, Florida. In operative terms the injunction enjoined and restrained the husband from threatening, assaulting, harassing or otherwise physically or mentally abusing the Petitioner. The order was not intended to enjoin the Respondent's husband from contact with her. The order describes that those parties (husband and wife) could have peaceful, non-threatening, nonviolent contact. The court had entered a preliminary injunction on May 20, 1995, as modified by the May 31, 1995 order. On June 19, 1995, Respondent petitioned for dissolution of marriage from Mr. Smith. On August 14, 1995, the final judgement of dissolution was entered. The final order dissolving the marriage kept in place the injunction entered on May 31, 1995, and awarded exclusive possession of the personal residence to Respondent and enjoined her former husband from coming to that premises. Respondent assumed that the necessity to obtain background information ended when the Respondent made the decision to seek dissolution of the marriage. At present Respondent does not have the Linton Group Home in her control.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which grants Respondent permission to renew the group home license upon the payment of a $750.00 fine. DONE and ENTERED this 14th day of February, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of February, 1996. APPENDIX CASE NO. 95-3741 The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Paragraph 1 is acknowledged in the preliminary statement to the recommend order. Paragraph 2 is subordinate to facts found. Paragraph 3 is subordinate to facts found with the exception of the sentence pertaining to the affidavit of good moral character. The affidavit was available. Paragraphs 4 through the first two sentences in Paragraph 16 are subordinate to facts found. The last sentence in Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through 23 are subordinate to facts found. Respondent's Facts: Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 11 through 25 are subordinate to facts found. COPIES FURNISHED: Ralph J. McMurphy, Esquire HRS District 13 Legal Office 1601 West Gulf-Atlantic Highway Wildwood, FL 34785 Frederick E. Landt, III, Esquire 445 NE 8th Avenue Post Office Box 2045 Ocala, FL 34478 Sandy Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issues in this case are whether Florida Housing Finance Corporation ("Florida Housing" or "Respondent") made a decision to determine Oasis at Renaissance Preserve I, LP ("Oasis" or "Petitioner") ineligible for SAIL funding for Request for Applications 2016-109 SAIL Financing of Affordable Multifamily Housing Developments to be used in Conjunction with Tax-Exempt Bond Financing and Non-competitive Housing Credits ("RFA"), that was contrary to a governing statute, rule, or solicitation specification, and, if so, whether that action was clearly erroneous, arbitrary, capricious, or contrary to competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) dismissing the formal written protests of Oasis at Renaissance Preserve I, LP, and (2) awarding funding to Osceola Palos Verdes, Ltd. DONE AND ENTERED this 15th day of March, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of March, 2017. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Jorden Burt, P.A. 215 South Monroe Street, Suite 500 Tallahassee, Florida 32302 (eServed) Betty Zachem, Esquire Marisa G. Button, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Kate Flemming, Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed)
The Issue In Case No. 99-2748, should Elvira Demdam, d/b/a San Juan Retirement Home, be administratively fined for operating an unlicensed facility, and if so, in what amount? In Case No. 99-2755, should Elvira Demdam, d/b/a Ingleside Retirement Home, be administratively fined for exceeding the home's licensed capacity, and if so, in what amount?
Findings Of Fact AHCA is the state agency responsible for licensing and regulation of ALFs in Florida. Respondent, Elvira Demdam, operates both Ingleside Retirement Home and San Juan Retirement Home in Jacksonville, Florida. Gloria Wolfe is employed by AHCA to inspect ALFs for compliance with state and federal regulations for such facilities. Elvira Demdam is the licensee for Ingleside Retirement Home. The effective date of the license for Ingleside was October 27, 1997. Its expiration date was October 26, 1999. On April 26, 1999, Ms. Wolfe surveyed a facility doing business as San Juan Retirement Home due to a complaint that San Juan was operating as an unlicensed ALF. During Ms. Wolfe's inspection, San Juan Retirement Home had four residents, all of whom were being provided personal services by the home, including assistance with meals, administration of medications, and assistance with other essential activities of daily living. Therefore, the San Juan facility was being operated as an ALF on April 26, 1999. In a letter dated April 27, 1999, AHCA imposed a moratorium on admissions, effective April 26, 1999, on Ingleside Retirement Home, because Ms. Demdam had an interest in Ingleside Retirement Home and an interest in San Juan Retirement Home, which was operating without a license. The moratorium for Ingleside was to remain in force until the unlicensed facility (San Juan) ceased operation, and no residents could be readmitted without approval of AHCA. On April 27, 1999, Ms. Wolfe's superior, Mr. Robert Dickson, recommended a $1,000.00 sanction, based on Ms. Wolfe's report and because he believed that previous sanctions had been recommended against the Ingleside Retirement Home within the licensure period for the same type of deficiency. However, at hearing, he did not specify any previous sanctions against Ingleside, similar or otherwise. Elvira Demdam is the licensed administrator of Ingleside Retirement Home and should have known of the legal requirement that San Juan Retirement Home be licensed. Indeed, by her own admission, Ms. Demdam had been a nursing home administrator for four years, knew of the licensure requirement, and had been attempting to license the San Juan facility since at least 60 days before the property was transferred to her. San Juan was licensed to another person at the time Ms. Demdam took it over. That prior license had expired in December 1998, and Ms. Demdam did not get San Juan Retirement Home licensed in her name until July 1999. Ms. Demdam's exhibits support her testimony that much of her license application paperwork for San Juan Retirement Home was lost in the mail or within AHCA and that ACHA repeatedly required that she re-submit the same documents. However, she did not establish that the Agency failed to grant or deny her application within 90 days of submission of all necessary application items. The fact remains that on April 26, 1999, Ms. Demdam was operating San Juan Retirement Home without a valid ALF license. Although Ms. Demdam asserted that one or more of the San Juan residents were non-blood relatives who had lived with her as family members since 1995, she offered no corroborative evidence on this issue, and this assertion is not found to be credible. Ms. Wolfe also participated in a May 4, 1999, monitoring visit and survey of Ingleside Retirement Home. At that time, she found Ingleside to be operating in excess of its licensed capacity. Ingleside Retirement Home is licensed for 18 residents, but in fact, had 19 residents on that date. Ms. Wolfe personally reviewed residents, room by room, and made a census of Ingleside Retirement Home on May 4, 1999. Her census shows that a nineteenth resident, S.W., had been admitted to Ingleside in March 1999. Ms. Wolfe's investigation revealed that this resident was not noted in Ingleside's admissions/discharge log. Despite arguments that this deficiency constituted a Class III violation, an A-004 "not classified" deficiency was actually issued. (See ACHA Exhibit 4, page 3) Ms. Demdam's explanation for the extra resident in Ingleside Retirement Home was that she had taken in S.W. at the request of a case worker for the Department of Children and Family Services (DCF) as an emergency placement on a weekend for a projected stay of only two to four weeks but that due to unforeseen circumstances, DCF had not removed S.W. timely. It is unclear from this record whether the patient, S.W., put the census of Ingleside over 18 patients in March, the time that she was first taken in. It is also unclear exactly how long S.W. caused Ingleside's census to exceed the 18 patients provided for on its license, but as of May 1999, Ms. Demdam was providing care for S.W. and another Ingleside resident, J.J., without pay. Mr. Dickson testified that he recommended a $1000.00 fine as a sanction for having the one extra resident in Ingleside Retirement Home on May 4, 1999, because of prior sanctions recommended within the licensure period for the same type of deficiency. However, the only similar deficiency or sanction he noted during his testimony was the Ingleside moratorium which had been based upon the lack of licensure of the San Juan facility. By a letter dated May 7, 1999, AHCA notified the Respondent of the findings supporting the imposition of a moratorium at Ingleside. Ms. Demdam testified credibly that she moved S.W. out of Ingleside Retirement Home as soon as she was notified and that she cleared-out the four residents of San Juan Retirement Home as soon as possible. Mr. Dickson views both ALF citations very seriously because operating an ALF without a license can be prosecuted by the State Attorney as a third-degree felony (see Section 400.408(1)(b)-(c), Florida Statues, (Supp. 1998) and because he views Ms. Demdam's long practice and licensure in the ALF field to demonstrate her knowing and willful disregard of the law.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order finding Respondent guilty of operating an unlicensed facility and imposing an administrative fine in the amount of $1,000 in DOAH Case No. 99-2748; and That the Agency for Health Care Administration enter a final order finding Respondent guilty of exceeding her licensed capacity at Ingleside Retirement Home, and imposing an administrative fine in the amount of $500.00 in DOAH Case No. 99-2755. DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3408D Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elvira Demdam, Administrator San Juan Retirement Home Un-Licensed 6561 San Juan Avenue Jacksonville, Florida 32210 Elvira Demdam, Administrator Ingelside Retirement Home 732 Camp Milton Lane Jacksonville, Florida 32220 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Cindy Cammarota and Quail Oaks Apartments violated the Hillsborough County Human Rights Ordinance (Ord. 88-9 as amended) by discriminating on grounds of race and religion against Petitioners, Reverends William and Jacqueline Caractor with respect to an attempted eviction action.
Findings Of Fact Respondent Cammarota is the resident manager of Quail Oak Apartments. Respondent Quail Oak is an apartment complex in Hillsborough County which is subject to the Hillsborough County Human Rights Ordinance. Petitioners, who are black, are husband and wife. They are ordained ministers, who reside in Quail Oaks. They have used the community center at the apartment complex for services and frequently pray with other residents. They wear clerical garb and read their Bible in common areas at the complex. At all times material to these proceedings, Respondent Cammarota knew Petitioners were ministers at Mt. Carmel African Methodist Espiscopal Church. On July 30, 1990, a written rental agreement was entered into between Quail Oaks, lessor, and Petitioners, lessees, for an apartment at the complex. The term of the lease was from September 1, 1990 through August 31, 1991. At the option of Quail Oaks, payment of rent could be accepted conditionally by means of a personal check from the lessees. If the check was rejected for insufficient funds, Quail Oaks could require rent plus late charges to be paid by cashier's check, certified check or money order. In addition, Quail Oaks could terminate the lease for nonpayment of rent. Prior to leaving for vacation in November 1990, Petitioner Jacqueline Caractor issued a check in the amount of $645.00 for the November rent. The check was drawn upon the personal checking account belonging to her and her husband at Citizens and Southern National Bank (C & S). It was payable upon demand to Quail Oaks. Although a C & S counter check was used, all of the information on the check was correct. This check was accepted by Respondent Cammarota on behalf of Quail Oaks. It was presented to Barnett Bank of Tampa (Barnett) for collection and the bank was instructed to deposit the funds in Quail Oaks' account at the bank. Barnett Bank did not exercise ordinary care in regard to the check as required by the Uniform Commercial Code. Instead of collecting the funds from the payor bank, Barnett returned the check unpaid to Quail Oaks on November 5, 1990. Notice of the bank's dishonor was sent to Quail Oaks in a notice of debit with respect to the instrument together with the check itself. No reason was given by the bank for the dishonor. The provisional settlement of the check made by Barnett with Quail Oaks was revoked and the amount of credit given was charged back to Quail Oaks' account. Respondent Cammarota, who managed the Quail Oaks account with Barnett, misinterpreted this activity in the account as nonpayment of rent. A "three day notice" was issued by Quail Oaks to Petitioners for payment of rent or possession of the premises on November 7, 1990. The deadline for payment was November 13, 1990. Petitioners received actual notice on November 16, 1990, when they returned from vacation and found the notice posted on the front door of their apartment. A message concerning the matter was also on their answering machine. The message advised them that their check had been returned for insufficient funds. Petitioners went to their bank to determine why their check had not been honored. They had always paid their rent on time and they were concerned about the current state of affairs. The C & S Bank investigated the matter and discovered the check had never been submitted to it for payment. While Petitioners were present, a representative of the bank telephoned Respondent Cammarota and told her a bank error must have occurred as sufficient funds had always been available in Petitioners' account to cover the check, which had never been submitted to C & S for collection. Once Petitioners established that insufficient funds was not the basis for a dishonor of their personal check, they went to Respondent Cammarota to discuss the resolution of the problem. Respondent Cammarota was asked to resubmit the personal check for payment. She refused and requested a money order that included additional charges for the costs Quail Oaks incurred as a result of Barnett Bank's dishonor of the check. Respondent did not believe Petitioners' claim that the original check was a good check. Petitioners advised that they would not pay additional charges because they had complied with all of their responsibilities. They asked for the return of the original check and offered to pay the rent only by money order. Respondent Cammarota refused this potential solution of the problem. Respondent Cammarota did not believe Petitioners were at the office in order to make the check good. She did not believe that Petitioners were merely asserting their legal rights under the lease and negotiable instruments law. As a result, she was suspicious and unyielding during the discussion. She wanted them to pay late fees in order to remain in possession of their apartment. Petitioners, who were tired from their journey and surprised by Respondent Cammarota's lack of receptiveness to very reasonable requests, became somewhat excited by the fact that the process to remove them from their home had begun and they were being told to pay more money than they legally owed to remain in possession. In their response to the situation, Petitioners reminded Respondent Cammarota that they were Reverends. A suggestion that Respondent Cammarota should listen to God was construed by her as "preaching". The excited utterances from Petitioners caused the leasing agent in the office to ask them to leave, which they refused to do until they had read the notice of debit Respondent had received from Barnett Bank about their check. After the notice of debit was read and returned to Quail Oaks, Petitioners began to take their leave. At this point, Respondent Cammarota said something like, "And you people call yourself ministers". On November 20, 1990, Petitioner Jacqueline Caractor gave Quail Oaks a second November 1990 rent payment in the form of a money order. A letter dated the same day from Quail Oaks advised Petitioners that the money order could not be accepted because their account had already been turned over to Quail Oaks' attorney for eviction proceedings. On November 21, 1990, eviction proceedings were filed against Petitioners by Respondent Quail Oaks for nonpayment of rent. On November 28, 1990, Petitioners filed a housing discrimination complaint against Respondents. Attempts to resolve the housing discrimination complaint through conciliation was unsuccessful. Respondent Cammarota uses the term "you people" in conversation whenever she refers to two or more people in her presence. Ordinarily, it is not used to differentiate blacks from whites. In her conversation with the Petitioners, however, the term referred to their race or religion or both. It is Respondent Cammarota's opinion that ministers should behave differently than the Petitioners were behaving when they were asserting their legal rights in her office on November 16, 1990. Respondents did not articulate some legitimate, non-discriminatory reason for the eviction action for non-payment of rent.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Board of County Commissioners enter a Final Order finding that an unlawful discriminatory housing practice occurred when Respondent Cammarota, agent for Respondent Quail Oaks, unlawfully discriminated against Petitioners because of race or color and religion. That Respondents be required to pay a $500 fine to Hillsborough County. DONE and ENTERED this 23rd day of September, 1992, at Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. See See HO HO #2. #11. 4. Accepted. See HO #3. 5. Accepted. See HO #5. 6. Accepted. See HO #10. 7. Accepted. See HO #11. 8. Accepted. See HO #12. 9. Accepted. See HO #13. 10. Accepted. See HO #14. 11. Accepted. See HO #14. 12. Accepted. See HO #14. 13. Accepted. See HO #18. 14. Accepted. See HO #20. 15. Accepted. See HO #21. 16. Accepted. 17. Accepted. Rejected. Irrelevant. Docket speaks for itself. See HO #22. Rejected. Irrelevant. Accepted. See HO #22. Accepted. Rejected. Contrary to fact and loose agreements. Rejected. Inconclusive evidence. Accepted. See HO #7. Accepted. See HO #13. Accepted. Accepted. Accepted. Rejected. Contrary to fact. Accepted. Accepted. See HO #16. Rejected. Argumentative. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. See HO #2. Accepted. See HO #2. Accepted. Accepted. #17. Accepted. See HO #2. Accepted. See HO #2. Rejected. Redundant. 49.-57. Rejected. Irrelevant. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Accepted. See HO #5, #7 and #8. Accepted. See HO #9. Accepted. See HO #11. Accepted. See HO #12. Accepted. See HO #13-#14. Rejected. Self serving. Accepted. See HO #21. Accepted. See HO #22. Rejected. Irrelevant. Rejected. Contrary to lease. Accepted. Accepted. See HO #2. Accepted. Accepted. Rejected. Contrary to fact and legal test for unlawful discrimination. COPIES FURNISHED: Cretta Johnson, Director Hillsborough County Equal Opportunity and Human Relations Department P.O. Box 1110 Tampa, FL 33601 John McMillan, Esquire Levin & McMillan 9385 N. 56th Street, #200 Temple Terrace, FL 33617-5594 Catherine P. Teti, Esquire Assistant County Attorney P.O. Box 1110 Tampa, FL 33601 Reverend William Caractor Qualified Representative 4747 W. Waters Avenue #3807 Tampa, FL 33614
The Issue Whether Respondent discriminated against Petitioner on the basis of his familial status, violating Subsection 760.23(2), Florida Statutes (2008).1 If discriminatory conduct has been proven, whether quantifiable damages, or other allowable remedies, have been proven under Subsection 760.35(3)(b), Florida Statutes.
Findings Of Fact Petitioner is a Caucasian male, who claims to be a person in a familial status that is entitled to protection under the Florida FHA. Petitioner has based his claim on the fact that he and his fiancée, Victoria Leonard, are the parents of three daughters who reside together in Unit C-233, Golf Crest Condominiums, 4050 Golden Gate Parkway, Naples, Florida. Respondent is a Florida corporation. In 1994, Respondent recorded an Amended and Restated Declaration of Condominium of Golf Crest of Naples (Declaration) in the Public Records of Lee County, Florida, at Official Record Book 1966, Page 2216. The first sentence of Subsection 12.1 of the Declaration states, “Each unit shall be occupied by not more than two (2) persons at any time, as a residence and for no other purpose.” Petitioner acquired title to Unit C-233 by warranty deed dated February 29, 2000. The deed states “subject to easements and restrictions of record, if any, which are specifically not extended or reimposed hereby.” Upon acquiring the unit, Petitioner moved in by himself. In September 2000, Leonard moved into the unit with him. In October 2001, twin daughters were born to Petitioner and Leonard. In September 2004, Petitioner, Leonard, and their twin daughters moved out of the unit and leased it to a tenant, which was approved by Respondent. In August 2006, Petitioner and Leonard gave birth to a third daughter. On July 4, 2008, Petitioner, Leonard, and their three daughters moved back into the unit. On July 14, 2008, the property manager for Respondent, Sue Johnson, delivered a covenant violation letter to Petitioner. It advised him of the two-person per unit rule. On October 29, 2008, Robert W. McClure, attorney for Respondent, sent a final covenant violation letter to Petitioner regarding the two-person per unit rule. The letter demanded that the violation stop immediately. It also stated that if it did not stop within 30 days from the date of the letter, Respondent would take legal action and seek injunctive relief to enforce the covenant violation. Petitioner sought an exemption from the rule from Respondent’s Board, but was denied. Respondent has not sought to enforce this rule prior to July 2008. Petitioner, on November 10, 2008, filed a complaint of discrimination with the FCHR. Petitioner’s unit can be described as follows: the air-conditioned inside portion of the unit is approximately 22.9 feet long and 13.4 feet wide, for a total of 306 square feet. It contains a kitchen and bathroom in the front of the unit. The living area of the unit consists of one room containing queen-size bunk beds, a couch, ottoman, television and stand, computer and stand, and an armoire. There is no separation of the living area and sleeping area. To the rear of the unit is a screened outdoor lanai approximately five feet by 14 feet. The Golf Crest of Naples property consists of three buildings: Building A containing 28 units, Building B containing 12 units, and Building C containing 12 units. The buildings were originally a motel until converted to condominiums. All units within Building C are uniform in size and a have a length of 22.9 feet and width of 13.4 feet, equaling 306 square feet. Larry Raab, current board member of Respondent and past president, stated his opinion that, given the size of the units, the two-person rule was reasonable to protect the well- being of the occupants. Further, he testified Respondent has never, during his membership on the board beginning in 2001, denied occupancy to any prospective buyer or tenant whose family consisted of an adult and child and had no knowledge of any discriminatory activity. Property Manager Sue Johnson testified that she has been manager of Respondent since 2004. During that time, she was involved in the approval process for both new buyers and tenants. To her knowledge, Respondent had never refused to allow the sale or rental of a unit to an adult and child, and no one on Respondent’s board had ever exhibited any indication to her that he or she did not wish to have children in the community. Radolfo Barrenechie testified that he is a member of the Board of Directors and its current president. He currently owns six units in Golf Crest and has owned as many as ten units since 2004. All units were rented for investment purposes and not for personal use. He stated, during his ownership of the units, two were occupied by tenants consisting of an adult and minor child. He had purchased one of the units with such tenants existing and for whom he did not need to seek approval from the Board. As to the second unit, the adult and child became tenants after he acquired ownership, and Board approval was required. The approval was granted. The two-person rule is reasonable given the size of the units. Respondent does not discriminate against children who live on the property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order denying the relief sought and dismissing the petition filed in this matter. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 17th day of June, 2009.
The Issue The issue presented is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents have been licensed by Petitioner to operate a foster home since August 1994. At all times material hereto, Mercedes and Topacio Hernandez were foster children who resided in Respondents' home. Mercedes was born on October 3, 1986, and Topacio was born on August 31, 1988. On March 1, 1996, Darlise Baron, a protective investigator for Petitioner, picked up Mercedes and Topacio from school and took them home. When she picked them up, they and their clothes were dirty. When they arrived at Respondents' home, Baron allowed the girls to play outside in the dirt while she waited for a Spanish-speaking police officer to arrive to assist her with her investigation. After Baron and the police officer entered Respondents' home, Baron inspected the kitchen area. The refrigerator contained "hardly any food", and the cabinets contained only a "couple of cans of vegetables." Respondent Ana Diaz explained to Baron that the girls received their breakfasts and lunches at school and the family had their evening meals catered. Baron noted that Mercedes was "average weight" and Topacio was "small for her weight". It is assumed from Baron's description that Topacio was overweight. Baron noticed a slide lock on the outside of the girls' bedroom door. The lock was the type where one merely raises the knob and slides the lock over. The lock was not a "dead bolt" lock. What Baron did not notice was that there were such slide locks on the outside of all the bedroom doors in Respondents' home. The purpose of the locks was to prevent Respondents' granddaughter from entering any of the bedrooms unattended. That toddler was the child of Respondents' daughter who also resided with Respondents. Baron determined that Mercedes and Topacio were not in immediate danger. She determined that the children did not need to be removed from Respondents' home. On March 4, 1996, Brenda Boston, a foster care unit supervisor for Petitioner, visited Respondents' home. She checked the sheets on the girls' bed: the top sheet was clean but the bottom sheet was soiled. In her view, the girls' bedroom was untidy because there were some packed boxes in the room. Boston checked the refrigerator and found it empty but there was a box of food in the freezer. The cupboards were also empty. Respondent Ana Diaz explained that their food was catered and showed Boston containers of warm food on the kitchen counter. There were no snacks available for the girls at that time. While Boston was there, she observed the interaction among Mercedes, Topacio, and Respondents and found it to be good. She determined that the foster children were not in any immediate danger and left them in Respondents' home. Lee C. Hickey is a social worker who has been the case manager for Mercedes and Topacio since December 1995. She sees the girls on a weekly basis, at home, at school, or in therapy. She has observed the interaction among them and the other students and the interaction among them and Respondent Ana Diaz and has found those interactions to be positive. Although she testified that there were no books in the Diaz foster home for the girls to read, she did not testify as to when that situation occurred and for how long that situation continued to exist. She did testify, however, that Topacio was in the second grade at the time and could not read. On March 26, 1996, Carol Rodriguez, a counselor employed by Petitioner, visited the Diaz foster home. She observed the children's room to be neat. Although she noticed the slide lock on the bedroom door, she did not question its presence. During that visit, Respondent Ana Diaz indicated that she was not happy with the Department and wanted Mercedes and Topacio removed from the home. On March 29, 1996, Rodriguez spoke with Respondent Ana Diaz who told her that Petitioner needed to remove the children from the Diaz home that day because Respondent Alejandro Diaz needed surgery on an emergency basis and they were leaving for Columbia the next day. Respondents did not lock Mercedes or Topacio in their bedroom for punishment, did not require them to clean the house in order to eat, did not keep them from eating meals as a family, and did not hit or threaten them. The children missed several therapy appointments when Respondent Ana Diaz was unable to transport them to therapy. They did receive therapy, however, on February 14, 1996, two days after their father died following a terminal illness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty and dismissing the charges filed against them. DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Miami, Florida 33128 Arthur Spiegel, Esquire 1800 Northwest Seventh Street Miami, Florida 33125 Richard Doran General Counsel 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk 1317 Winewood Boulevard Building Two, Room 204-X Tallahassee, Florida 32399-0700
The Issue Whether the discriminatory housing practices alleged in Petitioner's amended housing discrimination complaint were committed by Respondents and, if so, what relief should the Florida Commission on Human Relations (Commission) provide Petitioner.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Petitioner is a woman of Native American heritage. The record evidence, however, does not reveal that, at any time material to the instant case, anyone outside of her family, including Respondents, was aware of Petitioner's Native American background; nor does the record evidence establish that Petitioner was ever subjected to derogatory remarks about being of Native American descent. At all times material to the instant case, Petitioner has suffered from health problems that have substantially limited her ability to walk and have required her to use a motorized wheelchair to ambulate. Petitioner is now, and has been at all times material to the instant case, a resident of Kings Manor Estates (Park), a residential community of single-family mobile homes that is located in Davie, Florida. The Park is one of various mobile home communities that Respondent Uniprop Corporation (Uniprop) owns and operates. Like the other residents of the Park, Petitioner owns the mobile home in which she resides and pays rent to Uniprop for the use of the lot on which home is situated. Petitioner's home occupies lot 78 in the Park. As a resident of the Park, Petitioner has use of the Park's common areas and facilities, which include a swimming pool. There has been no showing that Petitioner has been denied access to any of these common areas or facilities due to her handicap. Residents of the Park must comply with the Park's rules and regulations. These rules and regulations reasonably require, among other things, that residents obtain, in addition to any permits they may need from the Town of Davie, the approval of Uniprop (referred to as "design approval") before constructing any improvements on their lots, including wheelchair ramps. To obtain such "design approval," a resident must submit to Park management a completed "design approval" application form and any supporting documentation. The application form provides a space for the resident to provide a "[d]escription, [d]rawing [l]ocation & [s]ize of [the proposed] [a]ddition." Immediately underneath this space on the form is the following pre-printed language: It is the Resident's responsibility to obtain all governmental approvals, to make certain the proposed improvement is suitable for the purpose intended and that the improvement complies with all applicable codes, standards and governmental requirements. Approval by Management of any improvement is limited to considerations of appearance. Resident agrees to have their home improvements built to the specifications listed above and illustrated in the space above and/or attached drawings, exhibits and permits. It is the responsibility of the Park's property manager, with the help of the Park's assistant property manager, to enforce the Park's rules and regulations. The duties of the Park's property manager and assistant property manager (whose work stations are located in the Park's business office) also include collecting rent from the Park's residents and taking appropriate action when residents are delinquent in their rental payments. There is a "drop off box" located outside the Park's business office in which residents can place their rental payments when the office is closed and the Park's property manager and assistant property manager are unavailable. Neither the property manager nor the assistant property manager is authorized to give residents "design approval." Only the Uniprop regional supervisor has such authority. The property manager and assistant property manager merely serve as "conduits" between the resident and the Uniprop regional supervisor in the "design approval" process. They take the completed "design approval" application form from the resident, provide it to the Uniprop regional supervisor, and, after hearing back from the regional supervisor, communicate the regional supervisor's decision to the resident. At all times material to the instant case, Respondent Delores Maddox was the Park's property manager. Ms. Maddox no longer works for Uniprop. Hazel Crain is now, and has been at all times material to the instant case, the Park's assistant property manager. At all times material to the instant case, Milton Rhines was the Uniprop regional supervisor having authority over the activities at the Park. Mr. Rhines was based in Ft. Myers, Florida, on the other side of the state from the Park. Josephine Patricia Silver is now, and has been at all times material to the instant case, employed as a sales consultant for Uniprop. In this capacity, she engages in activities designed to facilitate the sale of mobile homes manufactured by Uniprop (to be placed in the Park and other mobile home communities Uniprop owns and operates). Although her office is located in the Park, she plays no decision-making role in Park management. Notwithstanding that it is not her job responsibility to accept rental payments, she sometimes will do so as a courtesy to Park residents when she is at the Park on weekends or during the evening hours and the business office is closed. Although Ms. Silver and Petitioner do not get along, Ms. Silver has never threatened to "throw away" Petitioner's rental payments; nor has she ever told any of Park's residents that Petitioner was not paying her rent. Ms. Silver, however, has "gossiped" and made derogatory comments about Petitioner, but no showing has been made that Petitioner's handicap, her Native American heritage, or her having exercised any of her rights under Florida's Fair Housing Act played any role in Ms. Silver's having made these comments. In August of 2002, Petitioner mentioned to Ms. Crain about her interest in having a wheelchair ramp constructed on her lot. Ms. Crain suggested to Petitioner that she contact the Town to discuss the feasibility of such a project. Petitioner subsequently telephoned Brian Dillon, the Town's chief structural inspector. Mr. Dillon not only attempted to assist Petitioner in her efforts to obtain a permit from the Town to construct the wheelchair ramp, he also helped her make arrangements to have a boy scout troop construct the ramp for her with donated materials. The Town would not issue Petitioner a permit for the ramp unless and until she obtained the written approval of the Park owner, Uniprop. The ramp was constructed for Petitioner by the boy scouts during a weekend in mid-November 2002, without Petitioner's having first obtained Uniprop's "design approval" or a permit from the Town. Prior to the construction of the ramp, Petitioner had received a "design approval" application form from Ms. Crain and, on or about November 12 or 13, 2002, with Ms. Crain's assistance, had begun the application process. Petitioner, however, did not wait to receive the "design approval" she had applied for from Uniprop before giving the boy scouts the go ahead to start constructing the ramp. After discovering that the ramp had been constructed, Park management attempted to "work" with Petitioner to enable her to complete the paperwork necessary to obtain (belatedly) "design approval" for the ramp. On November 21, 2002, Petitioner submitted to Park management the following note from her physician, James Milne, D.O.: Due to Medical Necessity, my patient Mary Helen Meacham requires use of a motorized wheelchair, and it is necessary for her to have ramp access. If you have any questions, please feel free to call my office. By December 5, 2002, Petitioner had yet to submit the design plans needed to obtain "design approval" for the ramp. Accordingly, on that date, Uniprop's attorney, Ernest Kollra, Esquire, sent Petitioner, by certified mail, a Notice of Violation of Community Covenants, which read as follows: Please be advised the undersigned represents Kings Manor Estates with respect to your tenancy at the Community. This Notice is sent to you pursuant to Florida Statute, Chapter, 723.061, Et Seq. Park Management has advised the undersigned that you are in violation of the following Community Covenants of Kings Manor Estates: 7. Improvements: Before construction of any type is permitted on the homesite or added to a home, the Resident must obtain written permission from Management in the form of a Design Approval. Additional permits may be required by the municipality in which the Community is located. 10. Handicap Access: Any Residents requiring handicap access improvements such as ramps are permitted. All plans for such ramps must be approved by Management and comply with all other Community Covenants and governmental standards. You are in violation of the above Community Covenants, in that you have failed to submit plans to Management prior to the construction of your ramp. Park Management has been apprised by the Town of Davie that permits are required and none was obtained by you prior to construction, in compliance with Town of Davie governmental standards. In order to correct the above violation, you must within seven (7) days from delivery of this Notice, remove the ramp from your homesite. Delivery of the mailed notice is deemed given five (5) days after the date of postmark. If you fail and/or refuse to comply with this Notice, your tenancy will be terminated in accordance with Florida Statute Chapter 723.061.[2] If you have any questions concerning any of the above, you may contact Park Management at . . . . Petitioner did not remove the ramp by the deadline imposed by the December 5, 2002, Notice of Violation of Community Covenants. Park management, however, took no action to terminate her tenancy. After receiving the December 5, 2002, Notice of Violation of Community Covenants, Petitioner stopped making rental payments to Uniprop and, instead, deposited these monies with the Florida Justice Institute to be held in escrow until the controversy concerning the ramp was resolved. In or around mid-January 2003, Park management received from Petitioner corrected design plans for the ramp (that had been prepared by Doug Amos of Doug Amos Construction). On January 15, 2003, Ms. Maddox sent to Mr. Rhines, by facsimile transmission, a copy of these plans. Petitioner was subsequently granted "design approval" for the ramp. It has not been shown that there was any unreasonable or excessive delay involved in the granting of such approval. On February 19, 2003, Ms. Maddox wrote the following letter to the Town's Building Department: Please be advised that MaryHelen Meacham Woods is authorized to have permits issued for site #78 at 12620 SW 6th Street Davie, Florida 33325 for the Installation of a handicapped ramp. Thank you for your consideration in this matter. Following an inspection, the Town, in March 2003, issued a permit for the ramp. Petitioner has had use of the ramp since mid-November 2002 when it was first built (notwithstanding that she did not obtain Uniprop's "design approval" and a permit from the Town until some months later). On or about May 30, 2003, Petitioner authorized the Florida Justice Institute to deliver to Uniprop the rental payments it was holding (at Petitioner's request) in escrow. Uniprop accepted these rental payments when they were delivered. Petitioner has had raw eggs thrown at her wheelchair ramp. She suspects that Ms. Maddox's children were responsible for this vandalism, but there is insufficient record evidence to identify the culprits, much less ascertain their motives. On or about August 31, 2004, at a time when Hurricane Frances was approaching the Florida peninsula from the southeast, Park management sent Petitioner a Notice of Violation of Community Covenants, which read as follows: Pursuant to Florida Statute 723.061 et seq, you are hereby advised that you are in violation of the following Community Covenant(s) of which the Community first became aware on August 30, 2004. SECTION I: HOME AND SITE MAINTENANCE - Eachresident shall keep his/her site and home in a clean and neat condition and free of any fire hazards, there is no storage permitted around or under the home or in screened rooms. ALL items must be stored inside the home or storage shed. Although you have previously been furnished a copy of the Community Covenants of the park, and said Community Covenants are posted in the recreation center and business office, a copy of the rule(s) of which you are in violation is attached to this notice for your convenience. Specifically, you are in violation of the above Community Covenant(s) in that Your home, trim and utility shed are dirty, there is growth in the gutters and there is a window air conditioner on the home. In order to correct the above violation of the Community Covenant(s) you must Wash your home, trim and utility shed, paint with colors approved by management, clean the growth from the gutters and remove the window air conditioner within seven (7) days from delivery date of this letter. If you fail and/or refuse to correct the violations of the Community Covenant(s) in the manner listed above, the park will pursue all its rights and remedies pursuant to 723.061 et seq. PLEASE GOVERN YOURSELF ACCORDINGLY It has not been shown that Park management took this action to retaliate against Petitioner for having requested permission to construct a wheelchair ramp on her lot or that such action was motivated by any other improper purpose. Park management has not pursued the matter the further. At no time has Park management initiated legal action to terminate Petitioner's tenancy and evict her. The record evidence is insufficient to establish that Respondents, or anyone acting on their behalf, have said or done anything having the purpose or effect of disadvantaging Petitioner based on her handicap, her Native American heritage, or her having asked to be allowed to build a wheelchair ramp on her lot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondents are not guilty of any "discriminatory housing practice" and dismissing Petitioner's amended housing discrimination complaint based on such finding. DONE AND ENTERED this 5th day of May, 2005, in Tallahassee, Leon County, Florida. S ___ STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2005.
