The Issue The central issue in this case is whether Petitioner's application for licensure should be granted.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: On or about April 28, 1989, Petitioner, William R. Stuart, executed an application for a home improvement sellers license (application). Among the questions posed on the application were the following: Are there unpaid judgments against the applicant? If "yes," attach a copy of the complaint and judgment(s). Has the applicant ever been declared bankrupt or ever sought protection under any of the statutes dealing with bankruptcy? If "yes," attach a copy of the bankruptcy filing and any Orders entered. Petitioner answered both questions identified by checking the space marked "no." In May, 1987, Petitioner filed bankruptcy. Petitioner had used personal funds to support a family business and was not able to cover the obligations. At least two judgments have been entered against Petitioner. Those judgments (dating from August and September, 1987) may have been included in the bankruptcy proceeding. Since the time of the bankruptcy, Petitioner has received financial support from family and from an inheritance. He has incurred debts related to a hospitalization but has worked out a payment plan.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Comptroller, Department of Banking and Finance, enter a final order denying the application for licensure filed by Petitioner. DONE and ENTERED this 27th day of October, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 27th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3783 RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraph 1 is accepted. Paragraph 2 is rejected as hearsay or unsupported by the record in this cause. Paragraph 3 is rejected as irrelevant. Paragraphs 4 and 5 are accepted. Paragraph 6 is rejected as irrelevant. Paragraph 7 is accepted. Paragraphs 8, 9 and 10 are accepted. Paragraph 11 is rejected as irrelevant. Paragraph 12 is rejected as contrary to the weight of credible evidence. Paragraph 13 is accepted. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: 1. Paragraphs 1 through 4 are accepted. COPIES FURNISHED: William R. Stuart 4371 Carambola Circle North Coconut Creek, Florida 33066 Kenneth Stuart 2247 Palm Beach Lakes Boulevard, Suite 101 Post Office Box 24608 West Palm Beach, Florida 33416-4608 Eric Mendelsohn Assistant General Counsel Office of the Comptroller 111 Georgia Avenue, Suite 211 West Palm Beach, Florida 33401 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0330 Charles L. Stutts General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0330
The Issue Whether Petitioners' applications to license their group home facilities should have been approved by Respondent, Agency for Persons with Disabilities ("APD" or "Respondent").
Findings Of Fact The undersigned makes the following findings of fact: APD is the state agency that licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs. § 393.067, Fla. Stat. APD is charged with reviewing all applications and ensuring compliance with the requirements for licensure. Id. Stipulated Facts Submitted by the Parties The parties stipulated to the following facts. Loving Touch Dynamic Group Home and Loving Touch A Brighter Future Group Home are owned and operated by Loving Touch Adult Family Care, Inc. Zulia Brenovil is Loving Touch Adult Family Care, Inc.'s sole shareholder. Loving Touch's applications for licensure of the A Brighter Future and Dynamic homes were ultimately complete and met all requirements for licensure. However, APD exercised its discretion to deny the applications pursuant to Section 393.0673(2)(b), Florida Statutes. The parties dispute whether such discretion was correctly applied in this case. Until the denial of the A Brighter Future and Dynamic home applications, APD had not previously denied a license application submitted by Loving Touch Adult Family Care, Inc. Loving Touch Adult Family Care, Inc., has never had a license revoked or suspended by APD. The Notice of License Application Denial/Administrative Complaint does not charge Loving Touch Adult Family Care, Inc., with making false statements or omitting material facts in its license application under Section 393.0635(2)(a)1, Florida Statutes. Loving Touch Adult Family Care, Inc., also owns three additional homes licensed by APD: Loving Touch "My Place," Loving Touch "Transition," and Loving Touch "Unity." See also (Pet. Exs. 24-26.) APD renewed the licenses of My Place, Transition, and Unity after March 2, 2018. APD had previously renewed and/or issued the licenses of My Place, Transition, and Unity after the alleged verified findings by the Florida Department of Children and Families. Petitioners are the applicants for licensure of two group home facilities. Resp. Exs. 1 and 3. Petitioners' corporate officer and operator is Zulia Brenovil. She prepared and submitted both group home licensure applications for Loving Touch "A Brighter Future" Home and Loving Touch "Dynamic" Home to APD in December of 2017. Pre-Hr'g Stip. 3.(e); Resp. Exs. 1 and 3. Upon receipt, APD reviewed Petitioners' applications for licensure and took steps to verify the accuracy of the information provided in the applications. As part of the review, APD conducted a search of the Department of Children and Families ("DCF") records on the Florida Safe Families Network. Resp. Ex. 2, pp. 80-81; Resp. Ex. 3, pp. 186-197. APD's search of DCF records revealed four DCF reports that contained verified findings of abuse, neglect, or exploitation against Brenovil. Resp. Exs. 6, 7, 8, and 10. Those cases are outlined in more detail below. DCF Case Number 2015-147636 DCF case number 2015-147636 resulted in a verified finding of maltreatment/threatened harm against Brenovil. Resp. Ex. 6, p. 190. Tiffany Perry was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child E.L., a resident of one of Brenovil's group homes, was being bullied by other children and was not receiving enough food. Perry began her investigation by performing background checks on the persons involved in the report. Perry then visited Brenovil's group home. Perry interviewed all the children in the home. Perry noted that E.L.'s bedroom door had locks on the outside of the door that would allow someone to lock E.L. inside his bedroom. Initially, Brenovil denied knowing that the locks had been switched, but Brenovil ultimately admitted to Perry that Brenovil's maintenance man had switched the locks. Resp. Ex. 6, p. 191. Perry verified the findings against Brenovil because the locks on E.L.'s bedroom were on the outside of the door and this allowed E.L. to be locked in his bedroom. Resp. Ex. 6, p. 191. This also resulted in the other children locking E.L. in his bedroom. Resp. Ex. 6, p. 191. Additionally, if E.L. was locked in his bedroom she concluded that his ability to quickly and safely escape the house in the event of an emergency, such as a fire, would be impaired. Resp. Ex. 6, p. 191. DCF Case Number 2016-297713 DCF case number 2016-297713 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, pp. 209-210. Charlie Parker was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that minor child L.K., a resident of one of Brenovil's group homes, was using a cell phone to send pictures of L.K. cutting herself and to send other explicit pictures. Resp. Ex. 7, p. 209. There was also an allegation that another minor child resident, O.W., was not being closely monitored. Parker began his investigation by visiting Petitioners' group home. Upon inspection, Parker found that L.K.'s safety plan was not in L.K.'s file, as required. Parker testified that L.K.'s status was "to be seen, sight and sound." "Sight and sound" means that L.K. was supposed to be within sight of the house parents at Petitioners' group home at all times, and L.K. was never to be left unsupervised. Parker stated that he made verified findings against Brenovil because the safety plans for O.W. and L.K. were not properly located in the group home as required, and that staff members of the group home did not know the contents of the plans. Brenovil admitted to Parker that she was aware that the proper information was not available to the staff members at the group home. Based on Brenovil's comments and Parker's investigation and interviews of other staff members, Parker closed the case with a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 7, p. 211. DCF Case Number 2017-125783 DCF case number 2017-125783 resulted in five verified findings of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 8, pp. 228-229. Virginia Snyder was the DCF investigator assigned to investigate the allegations in this case. The initial report to DCF alleged that five minor children at two of Brenovil's group homes were not being adequately supervised. Resp. Ex. 8, pp. 227-228. Snyder began her investigation by interviewing the minor children residents of the group homes and the staff members, including Brenovil. Part of the allegations involved a child not receiving a ride back to the group home. The child alleged that she called the group home and no one would pick her up. Brenovil informed Snyder the staff member at the group home could not pick the child up, and Brenovil could not pick the child up because she had taken headache medicine. Brenovil and Brenovil's staff member both admitted to the investigator that the minor child had been dropped off at another foster home without contacting the foster mother of that foster home in advance. Snyder verified findings against Brenovil that children were going between Brenovil's group home and another group home without staff adequately determining or knowing where the children were going or located. Additionally, one child was left at a home and neither Brenovil, nor her employees, were able to pick the child up. DCF Case Number 2009-146042 DCF case number 2009-146042 resulted in a verified finding of maltreatment/inadequate supervision against Brenovil. Resp. Ex. 10, pp. 248-249. In that case, two residents of Brenovil's group home had improper sexual relations, due to inadequate supervision. Resp. Ex. 10, p. 248. Brenovil's Response to the DCF Verified Findings Brenovil denied switching or having someone switch the locks with respect to DCF case number 2015-147636. Brenovil testified that the safety plans for O.W. and L.K. were properly in the group home during Investigator Parker's investigation in DCF case number 2016-297713. Brenovil denied talking to an investigator with respect to DCF case number 2017-125783. Brenovil testified that she submitted both applications to APD in full in December of 2017. However, the Comprehensive Emergency Management Plans, submitted as part of the applications, were dated January 2018. Resp. Ex. 2, p. 23. Brenovil did not sign the Comprehensive Emergency Management Plan until February 16, 2018. Resp. Ex. 2, p. 37. Similarly, the Sexual Activities Policy, another document submitted as part of the licensure application, was not signed by Brenovil until January 18, 2018. Resp. Ex. 2, p. 103. Similarly, the Sexual Activity Policy submitted as part of A Brighter Future's application for licensure was not signed by Brenovil until January 18, 2018. Resp. Ex. 4, pp. 184-185. After being confronted with the late documents, Brenovil admitted that the completed applications were not submitted until after December of 2017.3/ As part of the DCF investigation in case number 2015- 147636, Perry interviewed Brenovil's board member, Mr. Phillip Alexander ("Alexander"). Resp. Ex. 6, p. 194. Alexander informed Perry that the locks had been reversed for years. Resp. Ex. 6, p. 194. When confronted with this at the hearing, Brenovil stated that Alexander did not make this statement to DCF. Brenovil later testified that she knew Alexander did not make that statement because Brenovil was present for the conversation between Alexander and Perry. However, on re-direct, Brenovil acknowledged that she was not present for the conversation between Alexander and Perry. Brenovil testified that she voluntarily gave up her licenses for her DCF licensed group homes, and that there had been no threat of administrative action from DCF. However, Michelle Windfelder, a DCF licensing specialist, testified that Brenovil relinquished her licenses in lieu of revocation. Windfelder testified that, because of problems in Brenovil's home, DCF contacted Brenovil and advised Brenovil that she had the option of relinquishing her licenses, otherwise DCF was going to revoke the licenses. Windfelder testified that because of the impending revocation by DCF, Brenovil decided to voluntarily relinquish the licenses. Petitioners offered no compelling or persuasive evidence to show that APD wrongly denied their license applications, or abused the discretion afforded to it under section 393.0673(2)(b), Florida Statutes. The undersigned finds the testimony and evidence of the DCF investigators and the DCF licensing specialist more compelling and credible than that of Brenovil. Ultimately, the Petitioners did not carry their burden of proof to show that APD abused its discretion or when it denied their initial applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying the license applications of Petitioners, Loving Touch "A Brighter Future" and Loving Touch "Dynamic." DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT L. 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 28th day of May, 2019.
The Issue The issues are whether the respondents engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by discriminating against Petitioner, on the basis of her alleged disability, and by harassing Petitioner and retaliating against her.
Findings Of Fact Petitioner is a former resident of Broadview Mobile Home Park (Broadview), located at 1701 Post Road, Melbourne, Florida. Petitioner resided in Broadview for approximately six years from an undisclosed date in 2002 through September 8, 2008. Mr. Lamont Garber holds an ownership interest in Broadview. The record does not quantify the ownership interest of Mr. Garber. Mr. Garber manages Broadview with his brother, Mr. Wayne Garber. Broadview rents sites within the mobile home park to residents who own mobile homes. Each site has access to water and electric service. Each resident arranges his or her water and electric service directly with the respective utility provider. Sometime in 2005, Petitioner purchased a mobile home for approximately $6,500.00 and moved within Broadview to Lot 24. The rental agreement for Lot 24 required rent to be paid on the first day of each month. The rent for July 2008 was due on July 1, 2008. Petitioner failed to pay the rent payment that was due on July 1, 2008. On July 9, 2008, Broadview served Petitioner, by certified mail, with a notice that she had five business days in which to pay the rent due (the five-day notice). Petitioner received the five-day notice on July 10, 2008. The five-day period expired on July 17, 2008, with no rent payment from Petitioner. Petitioner had paid rent late in the past, but Petitioner had never been more than four or five days late. After July 17, 2008, Broadview initiated eviction proceedings. Petitioner tendered the rent payment on July 20, 2008, but Broadview proceeded with the eviction. Petitioner did not appear and defend the eviction proceeding. On August 26, 2008, the County Court for Brevard County, Florida, issued a Final Default Judgment of Eviction awarding possession of Lot 24 to Broadview. Law enforcement officers thereafter executed the Court's order and evicted Petitioner from Broadview on or about September 8, 2008. After Petitioner received the notice of eviction, she filed a complaint with the Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (DBPR). DBPR is the state agency responsible for regulating mobile home parks, including Broadview. The allegations in the complaint that Petitioner filed with DBPR were substantially similar to the claims of discrimination, retaliation, harassment, and unlawful rent increases Petitioner asserts in this proceeding. DBPR rejected Petitioner's allegations and found that Broadview lawfully evicted Petitioner for non-payment of rent. The final agency action of DBPR is substantially similar to that of HUD and the Commission's proposed agency action in this proceeding. Each agency found that Broadview lawfully evicted Petitioner for non-payment of rent and rejected the allegations of discrimination, harassment, and retaliation. The DOAH proceeding is a de novo consideration of the proceeding before the Commission. A preponderance of the evidence does not establish a prima facie showing that Petitioner is disabled or handicapped. Petitioner has cancer and is receiving chemotherapy and radiation treatment. A preponderance of evidence does not show that the medical condition substantially limits one or more major life activities of Petitioner. Petitioner also alleges that she is disabled and handicapped by a mental condition. Petitioner submitted no medical evidence of the alleged disability or handicap. A preponderance of evidence does not establish a prima facie showing that, if such a mental condition exists, the condition substantially limits one or more major life activities of Petitioner. Assuming arguendo that a preponderance of the evidence showed that Petitioner were disabled or handicapped, a preponderance of evidence does not establish a prima facie showing that either of the respondents discriminated against Petitioner, harassed her, or evicted her in retaliation for Petitioner's disability or handicap. It is undisputed that Petitioner conducted neighborhood organization efforts to protest a rent increase at Broadview and repeatedly called law enforcement officials to report alleged drug and prostitution activity in Broadview.2 However, Broadview did not evict Petitioner for those activities, and Petitioner's testimony to the contrary is neither credible nor persuasive. Rather, Petitioner engaged in other activities that the respondents found objectionable. Petitioner baby sat for one or more dogs in violation of Broadview's prohibition against pets. Some of the dogs were dangerous to other residents. Petitioner also verbally abused Mr. Wayne Garber when he attempted to mediate with Petitioner concerning the presence of dogs and Petitioner's conduct toward management at Broadview. On July 1, 2008, Broadview served Petitioner with a seven-day notice concerning Petitioner's compliance with lease requirements. The notice, in relevant part, alleged that Petitioner harassed management and impaired the ability of management to perform its duties. The testimony of respondents describing the activities of Petitioner that precipitated the seven-day notice is credible and persuasive. A preponderance of the evidence shows that the respondents had legitimate non-discriminatory reasons for requiring Petitioner to comply with the terms of the seven-day notice and for requiring Petitioner to comply with the requirement for rent to be paid on July 1, 2008. Petitioner failed to comply with either requirement, and Broadview evicted Petitioner for legitimate, non-discriminatory reasons. The respondents did not harass or retaliate against Petitioner.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the respondents did not engage in an unlawful housing practice and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of May, 2009.
The Issue Is Petitioner Division of Workers’ Compensation correct in assessing a penalty (both as to liability and as to amount) against Respondent Steve Norris, d/b/a Steve Norris Trim Carpentry and Decks, for violating the Florida Workers’ Compensation Law?
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that “employers” as defined in Section 440.02(16), Florida Statutes (2005-2008), secure the payment of workers' compensation for the benefit of their “employees,” as defined in Section 440.02(15), Florida Statutes (2005-2008). See also § 440.107, Fla. Stat. (2005-2008). Respondent Steve Norris, a/k/a Stephen C. Norris, is being prosecuted under the business name of “Steve Norris Trim Carpentry and Decks.” Respondent has never been engaged in building “decks.” He is a sole proprietor domiciled in Florida and engaged in the "trimming out" of mobile homes. Respondent is in the business of hiring out to longitudinally join the two halves of a double- wide mobile home, seam the carpet, put vinyl on the two ends, and lap the two ends. In Respondent’s words, he and his crew “put everything together that the [mobile home] factory doesn’t do,” to set up a mobile home for habitation. Respondent, personally, completes the baseboards with a nail gun and the crown molding with a pin gun. He uses a miter saw at one point in the procedure. Respondent concedes that his type of work could be called “carpentry.” However, Respondent maintains that his crew does nothing more technical than putting vinyl on the two ends of a pre-fabricated mobile home. Petitioner Agency claims that the type of work performed by both Respondent and his crew constitutes “construction,” as understood in the applicable statutes, administrative rules, and manuals applicable to workers’ compensation. Respondent’s business became “Steve Norris Mobile Home Repair, LLC” in October 2008, by registration as a limited liability company (LLC) with the Florida Secretary of State. See, infra. However, for the time span involving the present workers’ compensation compliance analysis, which is August 1, 2005, through August 1, 2008, Respondent’s business was not incorporated, but was a sole proprietorship going variously by the names of “Steve Norris Trim Carpentry and Decks,” “Steve Norris Trim Outs,” and “Steve Norris Trim Carpentry.” No bad motive is imputed to Respondent’s use of several similar names for his business. The multiple names were the result of errors or inconsistencies on Respondent’s applications for a county occupational license and a business liability insurance policy or were simply the result of a casual attitude to formal business models and appellations. Immediately after high school graduation, Respondent went to work for a mobile home factory. A few years later, in 1993, he began the business described above. Again, with no understanding of business models or appellations, and with an erroneous “word of mouth” understanding that one could employ three persons full-time, besides oneself, without running afoul of Chapter 440, “The Florida Workers’ Compensation Law,”2/ it was Respondent’s habit, for 15 years, to frequently help out friends and acquaintances in desperate financial straits by providing them with honest work for a day or two at a time. Accordingly, Respondent periodically simultaneously employed one to five people (including at least two, and possibly three, of his sons and himself) until Petitioner Agency closed down his business in 2008, with its Stop-Work Order. See, infra. At all times material, Respondent has operated his business out of his personal residence. Petitioner Agency’s investigator, Michael Robinson, issued and served a Request for Production of Business Records to Steve Norris Trim Carpentry and Decks at Respondent’s combined business and personal address, to verify compliance with the workers' compensation statutes. Petitioner signed for this item by certified mail on October 12, 2007. The requested records were not received, so on October 22, 2007, Petitioner's investigator issued a Stop-Work Order to Steve Norris, d/b/a Steve Norris Trim Carpentry and Decks, for failure to produce business records within five days. However, the Stop-Work Order was not served on Respondent until August 13, 2008. Based on conversations with Respondent, Petitioner's investigator decided that Respondent's occupation was within the “construction industry.” On August 19, 2008, Petitioner's investigator issued an Amended Stop-Work Order to Steve Norris d/b/a Steve Norris Trim Carpentry and Decks for failure to secure the payment of workers' compensation. Also on August 19, 2008, Petitioner's investigator issued a Division of Workers' Compensation Request for Production of Business Records for Penalty Assessment Calculation to Steve Norris Trim Carpentry and Decks. On August 25, 2008, the Amended Stop-Work Order was served on Respondent by certified mail. Also on August 25, 2008, the Division of Workers' Compensation Request for Production of Business Records for Penalty Assessment Calculation was served on Respondent by certified mail. In response to the Request for Production of Business Records for Penalty Assessment Calculation, Ms. Dayna Clifford, who has assisted Respondent in preparation of his “year end papers” and taxes for many years, provided the requested payroll records and 1099 tax forms to Petitioner's investigator. Respondent’s payrolls fluctuated during the analysis period, but for most months he was paying at least himself and two or more employees. At no time did he use the services of a leasing company or professional employment organization to secure the payment of workers' compensation. Petitioner's investigator was unable to locate proof that Respondent had secured payment of workers' compensation on behalf of himself or any of the employees listed on his payroll sheets for any time material to the period analyzed. Indeed, Respondent testified that at all times material, he was in ignorance of the law to the extent that he believed that as long as he had no more than three regular, full-time employees plus himself, he did not have to purchase workers’ compensation coverage. By obtaining a workers' compensation exemption, a corporate officer or a member of an LLC may exempt themselves from the coverage requirements of Chapter 440, Florida Statutes. Petitioner's investigator did not receive any information indicating that Respondent was a corporation or an LLC at any time during the period analyzed. Respondent and Ms. Clifford testified that Respondent had applied for an exemption for workers’ compensation purposes, as did two other men who had worked for Respondent and who appear repeatedly, and indeed, regularly, on Respondent's payroll sheets. These men were Michael Fralick and Scott Latham III.3/ Ms. Clifford’s deposition testimony is clear that she believes she mailed three un-notarized election of exemption forms, each purportedly signed respectively on September 2, 2008, by Respondent, Fralick, and Latham, together with her check to the correct agency address, but there is no copy in evidence of any check from Ms. Clifford to the granter of such exemptions, which is Petitioner, Division of Workers’ Compensation. The three election-of-exemption forms which are in evidence reveal that they were prepared in connection with Respondent’s attempts to qualify with the Secretary of State as “Steve’s Mobile Home Service, LLC,” and sequential variations of that name which Respondent submitted in September 2008, to the Secretary of State, trying to come up with a business name that was unique and which had not already been incorporated. Other evidence shows that Respondent ultimately qualified “Steve Norris Mobile Home Repair, LLC,” with the Secretary of State on October 13, 2008. Although there is, in evidence, a copy of a November 2, 2007, check for $200.00, that Respondent and Ms. Clifford agree Respondent wrote to Ms. Clifford to cover the Division of Workers’ Compensation’s fee(s) for processing the three election of exemption forms, and this check also shows the bank accepted the check for deposit to Ms. Clifford’s account on November 2, 2007, the confusion of dates and the fact that the check amount is more than the charges for three exemptions, results in there being no clear evidence of when the three September 2, 2008, exemption requests were mailed to Petitioner Agency.4/ Moreover, and more to the point, even if Petitioner Agency had granted each of the three applicants an exemption on or about November 2, 2007 (the date of the check), or September 2, 2008 (the date beside the applicants’ signatures on their respective election of exemption applications), the exemptions would have been prospective, rather than retroactive, and therefore ineffective for all of the time preceding issuance of an exemption card. Most to the point, there is no evidence that a workers’ compensation exemption was ever granted by Petitioner Agency to any of the three applicants: Respondent, Fralick, or Latham, and there is no evidence that any of the applicants ever received an exemption card. Conclusive, however, is Respondent’s testimony that the business in question never registered as a corporation or LLC before October 2008. Petitioner's investigator was unable to locate an election to be exempt from workers' compensation for Respondent in the material time frame. Mark Mark, an employee of the Department of Financial Services, and supervisor of the statewide exemption program, testified that when received, an application for an exemption from workers' compensation is scanned into a computer imaging system and placed in an assignment queue but does not become effective until processed and an exemption card is issued. He was unable to locate any record that applications for elections to be exempt had ever been received on behalf of Respondent Steve Norris, Michael Fralick or Scott Latham, III. The Agency’s Coverage and Compliance Automated System (C-CAS) contains information on business entities in Florida and whether they have secured the payment of workers' compensation and whether exemptions from workers' compensation have been granted to individuals. Using C-CAS, Petitioner's investigator and penalty calculator, Gloria Catalan, verified that the individuals listed in Respondent's payroll records had not secured the payment of workers' compensation on behalf of themselves in the material time frame. Using C-CAS, Petitioner's investigator and penalty calculator verified that Respondent had not secured the payment of workers' compensation on behalf of his employees in the material time frame. Using C-CAS, Petitioner's investigator and penalty calculator verified that none of the individuals listed in Respondent's payroll records had an active exemption from workers' compensation in the material time frame. Using C-CAS, Petitioner's investigator and penalty calculator verified that no exemptions from workers' compensation had been obtained through Steve Norris Trim Carpentry and Decks or any other similarly-named entity in the material time frame. Using Respondent's business records, Petitioner's penalty calculator calculated a penalty to be assessed against Respondent for his failure to secure workers’ compensation coverage for himself and his workers from August 1, 2005, to August 1, 2008. On August 29, 2008, Petitioner issued an Amended Order of Penalty Assessment, assessing a penalty of $66,695.93 to Respondent, which was served on Respondent on September 2, 2008. Petitioner's penalty calculator assessed a penalty representing the workers' compensation premium that Respondent had not paid, multiplied by 1.5, as provided by law. Petitioner's penalty calculator based Respondent's assessed penalty on Code 5437 of the National Council on Compensation Insurance (NCCI) Class Code 5437, contained in the SCOPES Manual. That NCCI Class Code has provided, at least since October 1, 2005, as follows: 5437: Carpentry—Installation of Cabinet Work or Interior Trim * * * Code 5437 is intended primarily for specialist contractors performing interior carpentry finish or trim such as the installation of paneling, molding, cornices, parquet or finished wooden flooring, materials, staircases, cabinets, and counters. Carpentry of this kind generally involves skilled workmanship. * * * No rough carpentry work is included under this classification. Analogy Assignments: Additional operations assigned to this classification by analogy include the installation of locks in new buildings and the installation of weather stripping.5/ Respondent produced additional business records, and as a result, Petitioner issued a Second Amended Order of Penalty Assessment on October 1, 2008, lowering the assessed penalty to $60,881.71. Petitioner issued a Third Amended Order of Penalty Assessment to Respondent on January 15, 2009, further amending and reducing the assessed penalty to $53,908.51, due to the imputed amount (the “statewide average weekly wage” in 2007, and in 2008) being less in those years than the wages Respondent paid himself in those years. Respondent testified that all the individuals included on the Third Amended Order of Penalty Assessment had worked for him “at one time or another” in the last three years and that the amounts paid to the individuals listed on the penalty worksheet of the Third Amended Order of Penalty Assessment were accurate. There is no persuasive evidence that any of the individuals listed on the penalty worksheet of the Third Amended Order of Penalty Assessment were members of an LLC or corporate officers or had secured the payment of workers' compensation on behalf of themselves at any time material to the charges herein. Respondent represented that since complying with the First Stop-Work Order, he has been unable to find employment. Quite obviously, he has been unable to employ anyone or operate his business since the Stop-Work Order was served. He is in danger of having his vehicles repossessed, and he has no reserve funds with which to enter into an agreement with Petitioner Agency which would let him get back to work in his own business, based on obtaining workers’ compensation insurance and entering into a payment schedule for his fine, by paying ten per cent down and a percentage of the assessed $53,908.51, per month.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order that recalculates Respondent's fine to cover only the period from March 15, 2006, to August 1, 2008, and requires his payment thereof. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009.
The Issue The issue is whether Respondent discriminated against Petitioner based on her sex or an alleged handicap contrary to Sections 760.20 through 760.37, Florida Statutes (2008), Fair Housing Act, as amended (the Act).
The Issue The issue presented is whether subsections (1) and (4) of Rule 7D-32.002, Florida Administrative Code, are an invalid exercise of delegated legislative authority.
The Issue The issue in this case is whether Respondents discriminated against Petitioners based on race regarding the renting of a house.
Findings Of Fact LM Rentals owns 80 houses, which it rents. Mr. Peeples manages LM Rentals. LM Rentals contracts with Vantage to provide management of the rental properties, and Ms. Mossow is employed by Vantage. LM Rentals rented a house to the Odoms for approximately eight years, beginning in 2003. Mrs. Odom is a Native American. Mr. Odom is White and is not a Native American. No evidence was presented to establish that either anyone from LM Rentals or Ms. Mossow was aware that Mrs. Odom is a Native American. Mrs. Odom's physical appearance, her speech, and her surname could reasonably lead one to think that she is not a Native American. Her appearance would lead one to believe that she is White. The application which the Odoms filled out to rent the house did not require the Odoms to state their race. Mrs. Odom never informed employees of LM Rentals or Ms. Mossow that she is a Native American. Mrs. Odom claims that her children have darker skin than she, and, therefore, Ms. Mossow and employees of LM Rentals should have known that she is a Native American by looking at her children. However, no testimony was presented that Ms. Mossow or anyone from LM Rentals ever met Mrs. Odom's children prior to the filing of the discrimination complaint. Ms. Mossow did not meet any of Mrs. Odom's children until a short time before the final hearing when she delivered copies of exhibits to the Odoms' home. Mr. Peeples, the representative of LM Rentals, did not meet the Odoms' children and never met the Odoms until a few days before the final hearing. The house which the Odoms rented from LM Rentals developed a mold problem. Instead of bringing the mold problem to the attention of Ms. Mossow or anyone at LM Rentals, the Odoms contacted the Polk County Health Department (Health Department), which sent an environmental specialist to investigate the mold situation in January 2010. LM Rentals received a letter from the Health Department concerning the mold. LM Rentals hired a third-party testing company to test the house for mold. The coils on the air conditioner were replaced. The Odoms were not satisfied and requested that Ms. Mossow find them another rental house in the same school district in which they currently resided. LM Rentals has an average vacancy rate of five percent, which equates to about four houses at any given time. At the time that the Odoms requested to be relocated, there was only one house vacant in the school district which the Odoms wanted. The Odoms did not like the house and refused to relocate. Mrs. Odom claims that there were other houses available, but could not point to any specific house. Her claim is based on sheer speculation. The Odoms requested that the carpet be replaced, but, based on the tests of the third-party testing company, LM Rentals refused to do so. About the time they were having the mold problems, the Odoms' daughter was suspended from school. Mrs. Odom attributes the suspension to discrimination by Respondents. Mrs. Odom called, as a witness, the teacher who made the referral which resulted in Mrs. Odom's daughter being suspended. The teacher did not know Ms. Mossow and did not know Mr. Peeples. The teacher, who is also an attorney, was not sure if she had ever represented LM Rentals in the past as an attorney. The suspension was totally unrelated to any mold problems and any alleged discrimination. Mrs. Odom also claims that her son was arrested for disorderly conduct about the time of the mold problem, and she lays the arrest at the door of Respondents. Her rationale for her claim is that the arrest happened at the time they were dealing with the mold issues and that LM Rentals knew people. There is not a scintilla of evidence to connect the arrest of the Odoms' son to any actions by Respondents. In April 2010, during the period in which the mold was an issue, a code enforcement inspector saw a small grill on the Odoms' driveway, which was apparently a code violation. The inspector told the Odoms that the grill needed to be removed. LM Rentals received a letter from the code enforcement department stating that LM Rentals would be fined if the violation was not corrected. Ms. Mossow contacted the Odoms in an attempt to get the grill removed in order to avoid being fined. Mrs. Odom claims that Ms. Mossow and LM Rentals caused the code enforcement inspector to come to the Odoms' home and ask that the grill be removed. Mrs. Odom's claim is without merit. It is unlikely that Ms. Mossow or LM Rentals would request a code enforcement inspector to find a code violation which would result in LM Rentals, as owner of the property, being fined. No evidence was presented to show that Respondents treated non-minorities any differently than the Odoms were treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Lawrence and Candace Odom's Petition for Relief. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 6th day of December, 2011.
The Issue Whether the Agency for Persons with Disabilities (APD) properly denied the application for licensure renewal sought for the group home facility license held by Tracy Court Group Home, owned and operated by V-Agape, LLC.
Findings Of Fact Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, and residential habitation centers pursuant to section 20.197 and chapter 393, Florida Statutes. At all times material to this complaint, Respondent held foster or group home facility licenses issued by APD. The current group home license issued for V-Agape, LLC, located at 19103 Tracy Court, Lutz, Florida 33548, is owned by Tonya Nelson, the sole managing member. Respondent has contracted with APD to provide the residents with Medicaid waiver developmental disability residential habitation services. HCSO conducts investigations of reports of abuse, neglect, abandonment, and threats of harm to children on behalf of DCF. Investigations of abuse, neglect, abandonment, and threats of harm are initiated by reported incidents through the Florida Abuse Hotline. Karen Gonzalez is the supervisor of the Specialized Investigating Unit. She supervises the CPIs who perform the abuse hotline investigations. Ms. Gonzalez supervised Robert Hoon and Jennifer Campbell, both CPIs. A report was made to the Florida Abuse Hotline on January 24, 2014, that a minor female resident of Respondent’s Tracy Court Group Home sustained bruising and a red mark on the back of her hand from being struck on her hands by Tonya Nelson. The resident is non-verbal and intellectually disabled. The subsequent investigation by CPI Hoon, on behalf of DCF, was ultimately closed with verified indicators for physical injury upon the minor resident living in the Tracy Court Group Home, but did not identify the caregiver responsible. CPI Hoon reviewed and discussed the investigation with Supervisor Gonzalez before he prepared the Investigative Summary (IS). When conducting investigations, the CPI reviews the prior history of incidents reported on a group home and its owner/operator. In subsection “D. Prior Reports and Service Records Implications for Child Safety,” CPI Hoon reported that: There are prior reports on the facility that include concerns for physical discipline in the foster home and to her o[w]n children. There is a verified report in 2012 for physical injury and the aps [adult perpetrators] where [sic] Tonya Nelson and the aunt as it is unknown who caused the injuries. Ms. Gonzalez testified that prior reports are reviewed in conducting their investigations to determine whether a pattern of concern for the health and safety of the children placed in that home and for the caretakers caring for the children in the home exists. The CPIs utilize DCF Operating Procedure (CFOP) 175-28, Child Maltreatment Index, as a guideline in conducting their investigations. A “verified finding” is made when a preponderance of the credible evidence results in a determination that the specific harm or threat of harm was the result of abuse, abandonment, or neglect. CPI Campbell explained the application of CFOP during an investigation: [I]t . . . breaks down the different maltreatments that are investigated under the umbrella of abuse, neglect, and abandonment, and it provides a guideline for the definitions of what the different maltreatments are, and the different types of supporting evidence and documents that may be needed when supporting a maltreatment when the investigator comes up with the findings. It’s basically a guideline for investigations, because when a report comes in it may not be just one maltreatment, there may be a number of different maltreatments; or an investigator may identify a maltreatment during the course of an investigation, and so this provides a guideline for the investigator. On May 20, 2014, a report was made to the Florida Abuse Hotline about a minor resident of Respondent’s Tracy Court Group Home. An investigation was commenced concerning unexplained bruises observed on the resident, a vulnerable minor. CPI Campbell completed the investigation and prepared the IS. She discussed the verified findings with Supervisor Gonzalez. CPI Campbell is an experienced investigator, having had 11 years of service with HCSO following five years’ experience as a CPI in Michigan. The report of May 20, 2014, was a “Supplemental” report since, according to Supervisor Gonzalez, it came in right after the initial risk sequence. Rather than creating an entire new report, this one became supplemental to the prior one. The IS stated that the resident had a large bruise on her left thigh and bruises on her left arm and the back of her leg. Ms. Nelson was not able to explain how the minor resident sustained the bruises on her leg and arm. CPI Campbell became involved with Ms. Nelson and the investigation of the group home when Supervisor Gonzalez gave her the task of completing the investigation initiated by CPI Krisita Edwards. At the time CPI Campbell took over the investigation, CPI Edwards had been assigned to other duties. CPI Campbell explained that it was not unusual for a second investigator to complete work begun by another since all their notes are kept on a central database known as the Florida Safe Families Network (FSFN), where all contacts are noted, as well as the investigative summary. CPIs Edwards and Campbell collaborated on the investigation in this case. CPI Edwards entered her initial findings in the FSFN, which was picked up and continued by CPI Campbell when she took over the case. The two CPIs have collaborated on other cases in a similar fashion. The initial documentation by CPI Edwards was performed within 48 hours of the call coming into the abuse hotline as required. CPI Campbell’s completion of the report and investigation occurred after she had spoken with CPI Edwards and discussed the matter with Supervisor Gonzalez. The result of the investigation concerning the bruises on the minor resident was that the bruises were “indeterminate for physical abuse” and “indeterminate for supervisory neglect” due to the fact that a specific cause of the injuries could not be determined. Further, since the minor resident had been removed to another group home, the report concluded that there existed no continuing threat to the resident’s well-being. Even though the resident had been removed from the Tracy Court Group Home and, therefore, was not in any danger of being further harmed, CPI Campbell continued to have serious concerns about the care of residents in the group home. She believed that several allegations of the same type of harm were being made in the group home and that they could not ask the resident how she received her injuries since she was non-verbal. Myra Leitold, an APD residential licensing supervisor, had monitored the Tracy Court Group Home for the previous nine and one-half years. On December 28, 2012, she observed that a door lock to the office and bedroom was keyed so that it could be readily opened from the inside which, she believed, created a safety hazard. Between December 2012 and August 2014, the group home was cited for ten violations of Medication Administration Procedures. On one of her visits, in December 2012, Ms. Leitold noted that no current prescription was present for one of the residents, and that the label on the prescription bottle did not match the prescription drugs inside the bottle. Additionally, she found that the accounting for one of the resident’s finances was not current and that the temperature inside the group home was a chilly 65 degrees Fahrenheit. Mitchell Turner, human services program specialist for APD, recorded numerous medication administration violations at the group home. He noted on May 30, 2013, that the medication prescriptions and instructions for the Medical Administration Record (MAR) did not match. On June 18, 2013, he discovered that the wrong dosage of prescription was being given to a resident, and Ms. Nelson admitted this mistake. Mr. Turner grew so concerned about the prescription irregularities that he requested Pamela Lassiter, a medical case management registered nurse, to review the group home. Nurse Lassiter was sent to the home where she discovered and cited the home for three additional prescription violations. Even following Nurse Lassiter’s visit, on another trip to the group home on April 9, 2014, Mr. Turner cited an additional MAR violation. He believed these violations posed a health and safety risk to the residents affected and exhibited a pattern of neglect by Respondent to the health and safety of vulnerable children. During the period when prescription and other violations were noted, on January 11, 2013, Ms. Nelson exceeded the maximum licensed capacity of three in the group home when she accepted a fourth resident. She did not have prior written approval from APD to exceed her licensed capacity of residents. On September 25, 2013, Mr. Turner issued a Notice of Non-Compliance (NNC) because Ms. Nelson again exceeded the licensed capacity for the number of residents in the group home without prior written approval from APD. Mr. Turner expressed his concerns over the repeated violations by Respondent. Ms. Nelson testified that she had received verbal approval for the placements in excess of the home’s licensed capacity from Meisha Stewart, residential placement coordinator for APD, and that on a prior occasion in 2012, she had accepted a resident after receiving verbal approval. This testimony was rebutted by both Geraldine Williams, the former regional operations manager for APD’s Suncoast Region, and Ms. Leitold, who testified she had never known APD to give verbal approval for a placement of a resident in a group home. With the high volume of referrals APD makes to group homes, they cannot operate in a system where verbal placements occur. All placements must be made in writing. When a provider receives a NNC, the provider is required to submit and successfully complete a Corrective Action Plan (CAP). Mr. Turner testified that Ms. Nelson did not submit or successfully complete a CAP for the MAR violations. On January 17, 2013, Ms. Leitold visited the group home and observed the following violations: volatile materials were not stored in approved metal containers and three prescriptions for a resident’s medications were not present. The gasoline, charcoal, and lighter fluid found by Ms. Leitold were required to be stored in approved metal containers. Keeping these materials in the open posed a safety hazard for the minor residents by giving them access to volatile materials. On November 4, 2014, Ms. Nelson sent an email to Meisha Stewart advising her she intended to accept a non-APD client for placement in the Tracy Court Group Home without APD’s prior approval. Ms. Nelson testified that since that same resident had been placed in the Tracy Court Group Home for a six-month period in 2013, she believed she did not need a new approval in 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying V-Agape, LLC, d/b/a Tracy Court Group Home’s application for license renewal. DONE AND ENTERED this 6th day of November, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2015. COPIES FURNISHED: Brian F. McGrail, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Lindsey Ann West, Esquire The Plante Law Group, PLC 806 North Armenia Avenue Tampa, Florida 33609 (eServed) Gerald D. Siebens, Esquire Agency for Persons with Disabilities 1313 North Tampa Street, Suite 515 Tampa, Florida 33602-3328 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
