The Issue Whether Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and, if so, what penalty should be imposed.
Findings Of Fact Effective July 1, 1997, Petitioner is the state agency charged with regulating the responsibility for regulation and discipline of the nursing practice within the State of Florida. Respondent is a certified nursing assistant (CNA) holding Florida nursing certificate number CX 0993266675590. In December 2001, Respondent was employed as a CNA at Beverly Health Care, now known as Seacrest Health Care of Largo. Patient F.K. was a dementia patient in her advanced years and was not coherent or responsive. She was a total care patient, which required staff to perform all activities of daily living for her, such as mouth care, showers, feeding, dressing, bathing, and getting her into and out of bed. Patient F.K. did not speak, but did have a tendency to hum loudly and continuously. On December 20, 2001, Respondent was in Patient F.K.'s room following Patient F.K.'s return from lunch. Respondent called another CNA, Sheleta Cunningham-Talley, into Patient F.K.'s room, and Respondent engaged her in conversation. At that time, Patient F.K. was humming, as she often did. Respondent said to Talley, "watch how I shut this bitch up" and then proceeded to strike Patient F.K. on the face and throat. Patient F.K.'s face and neck turned red, and she became visibly upset after being struck. Beverly Health Care has a policy that residents have a right not to be physically abused. CNAs are under a legal or statutory duty not to hit or abuse patients. Striking a patient in the face and throat is a violation of that duty to not physically abuse a patient. Agnes Kelly is a registered nurse who was employed at Beverly Health Care during Respondent's employment there. Kelly has practiced as a registered nurse since 1994. She was a weekend supervisor at Beverly Health Care and supervised approximately 25 nursing employees which included a number of CNAs. Kelly has supervised nursing staff and CNAs for approximately nine years, and, as such, is familiar with the duties and responsibilities of CNAs. It is her opinion that Respondent violated her duty not to physically abuse a patient. Based on the foregoing, the evidence is clear and convincing that Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), by intentionally violating the statutory and legal obligation of CNAs to not physically abuse or hit a patient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order finding Respondent guilty of violating Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and revoking Respondent's certification and requiring Respondent to pay the costs of investigation and prosecution of this matter. DONE AND ENTERED this 22nd day of July, 2003, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2003. COPIES FURNISHED: Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Pearla M. Mixon 4365 Tuna Drive, Southeast St. Petersburg, Florida 33705 Dan Coble, R.N., Ph.D., C.N.A.A. C., B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning the Administrative Complaints for LIFE CARE CENTER OF SARASOTA, CON 7904, LIFE CARE CENTER OF ORANGE PARK, CON 7737, LIFE CARE CENTER OF NEW PORT RICHEY, CON 8813, LIFE CARE CENTER OF PORT ST. LUCIE, CON 8975, LIFE CARE CENTER OF OCALA, CON 7923 AND LIFE CARE CENTER OF MELBOURNE, CON 3828 collectively known as Life Care Centers of America (hereinafter "Life Care") which the Agency filed the Administrative Complaints for Life Care's failure to comply with Medicaid conditions placed on the CONs. Composite Exhibit 1. The parties have since entered into a Settlement Agreement. Exhibit 2. It is ORDERED that: The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. The Settlement Agreement is attached hereto and made a part hereof. The parties are directed to comply with the terms of the Settlement Agreement upon payment of any fines. The Respondent shall pay the Agency a total of $5,780.00 within 30 days of the date of this Final Order. The total amount is divided among the cases as such: Case Number 2008013528 - $323.00 Case Number 2008013522 - $663.00 Case Number 2009000372 - $1,663.00 Case Number 2009000369 - $1,530.00 Case Number 2009000371 - $1,365.00 Case Number 2008013532 - $236.00 A check made payable to the "Agency for Health Care Administration" and containing the AHCA ten-digit case numbers should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 The above-styled cases are hereby closed. DONE AND ORDERED this Z--1 day of 011, in Tallahassee, Florida. Elizab Agen tion
Other Judicial Opinions A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE PRESCRIBED BY LAW WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this '/,:r: day of RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 COPIES FURNISHED TO: Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Attorney for Life Care Centers of America (U. S. Mail) James H. Harris, Esquire Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Richard Joseph Saliba, Esquire Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) MAR-17-2009 10:39 AGENCY HEALTH CARE ADMIN Mar 17 2009 10=25 850 921 0158 P.08 STATE OF PLORXDA
The Issue Whether Respondent wrongfully failed or refused to hire Petitioner because of her physical handicap, obesity, if she was otherwise qualified, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Rose E. Blake, at all time relevant, is a Certified Nurses Assistant in the State of Florida. In the summer of 1991, Petitioner was a 45 year old female, whose height was 5 feet, 4 inches and she weighed in excess of 250 pounds. Respondent, Sunset Point Nursing Home, is a health care facility that provides nursing home care for patients, and employs more than five employees. On March 11, 1991, Petitioner completed an application for the position of Nurses Aide at Respondent's facility. Petitioner's employment application made no claim of "handicap" of obesity or otherwise. Prior to being interviewed, Petitioner withdrew her name from consideration, and accepted a position at another health care facility. On July 11, 1991, Petitioner contacted Respondent's personnel department, and asked that her application for the nurse's aide position be reactivated. They did so and Petitioner was interviewed for a position on July 15, 1991. On July 15, 1991, she was informed that she was accepted for the position of nurse's aide, but would be required to undergo pre-employment orientation and a physical examination before she could start work in the next few days. On July 16, 1991, she went through a two hour orientation training at Respondent's facility which was conducted by Respondent's staff. On the same day, July 16, 1991, Petitioner underwent a physical examination at the office of a Dr. Johnson, a physician that Petitioner was referred to at Lakeside Medical Center. On the following day, after receiving a message from the physicians office, Helen Mills, Respondent's Assistant Director of Nursing, talked with Dr. Johnson on the telephone. After performing a physical examination, he recommended against hiring Petitioner on the basis that she was susceptible to developing low back problems, due to her obesity. Based on this conversation alone, Mills called Petitioner, and withdrew her offer of employment at Respondent's facility as a CNA. The position of CNA is physically very demanding. A CNA is required to lift patients, transfer them from bed to chair, bed to bathroom, bed to wheelchair. There is a great deal of stooping, bending, and lifting involved throughout a CNA's shift. A CNA is also required to feed patients, turn and position them in their beds. A CNA is also required to be on their feet constantly throughout her shift. Petitioner had successfully performed the functions of a CNA for 27 years, with the last ten years having been certified by the State of Florida. During this period of time, Petitioner has weighed in excess of 200 pounds, and her weight has not impaired her functioning successfully as a CNA. There was no expert medical evidence offered to establish whether Petitioner's obesity is endogenous (metabolic) or exogenous (caused by overeating). There was no competent evidence offered upon which to find Petitioner's obesity is physiological in origin or that it is permanent. Petitioner did not offer evidence to show damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered holding that: The Petitioner was discriminated against on the basis of her handicap when Respondent failed or refused to hire her; The Petitioner receive any damages she has suffered in accordance with applicable law. Respondent be ordered to cease and desist said discriminatory practices. DONE and ENTERED this 29th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Neither party submitted proposed findings of fact or conclusions of law. COPIES FURNISHED: Ronald W. Stutzman Qualified Representative Vice President for Human Resources Harborside Healthcare 470 Atlantic Avenue Boston, Ma. 02210 Ms. Rose E. Blake P.O. Box 616 Dunedin, Florida 34698 City of Clearwater Legal Department P.O. Box 4748 Clearwater, Florida 34618-4748 Dana Baird, Esquire Commission on Human Relation 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was the owner of a licensed assisted living facility located at 7701 Southwest 20th Street, Miami, Florida (the subject premises). This facility was licensed for six residents. Jose Gutierrez-Marti and Maria Witt were the owners of the Respondent. The residents of the subject premises were mentally ill adults. On November 21, 1996, Arturo Bustamante, a fire protection specialist and a health facility evaluator employed by Petitioner, conducted an inspection of the subject premises. Mr. Bustamante went to the subject premises in response to a complaint and to conduct a follow-up inspection to the previous inspection. During the course of his inspection, Mr. Bustamante determined that there were eight residents living at the subject premises. This determination was initially made by counting beds and inspecting the prescription medication that was provided each resident. Mr. Bustamante confirmed that there were eight residents by interviewing the residents, and by observing that the eight residents were removed from the subject premises later that day by the Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services. There was no running water in the subject premises on November 21, 1996. Consequently, there were no functioning bathroom facilities in the subject premises. Mr. Bustamante observed fresh feces and the smell of urine in an area of the backyard that the residents reported they used in lieu of a bathroom. Respondent had not notified Respondent that the water services had been terminated. There was no evidence that Respondent had taken any action to correct this serious deficiency. There was insufficient evidence to establish when the water service had been terminated or whether water service had been terminated previously. Mr. Bustamante observed roach droppings throughout the subject premises. Mr. Bustamante observed a box of powdered milk on a shelf inside the facility. When he opened the container to inspect the contents, five or six roaches jumped out of the box. Metro-Dade Police Officers Mary Ippolito and Mary Jo LaMont came to the subject premises at the request of Mr. Bustamante. These police officers were present when the residents were removed from the subject premises. Officer LaMont observed cockroaches in the kitchen area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that finds that on November 21, 1996, Respondent exceeded its resident capacity and failed to meet licensure standards. It is further RECOMMENDED that the Final Order impose an administrative fine against the Respondent in the amount of $1,000.00 for exceeding its resident and capacity. It is further RECOMMENDED that Respondent be fined $4,000 and its license revoked for failing to provide for the residents' basic sanitation needs. It is further RECOMMENDED that Respondent be permitted to reapply for licensure when it can establish that its facility meets all licensure standards. DONE AND ENTERED this 1st day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2st day of December, 1997.
The Issue Whether or not the Respondent, Jerry Wayne Gilliam, engaged in unprofessional conduct, to wit: leaving his assigned nursing duties, unauthorized or without permission, in violation of Chapter 464.018(1)(f), Florida Statutes, and Rule Chapter 210-10.05(2)(e)4, Florida Administrative Code, for which disciplinary action is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the prehearing stipulation, and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed herein dated August 12, 1981, Petitioner, Board of Nursing, seeks to take disciplinary action against Respondent, Jerry Wayne Gilliam, based on the complaint allegation that Respondent walked off his assigned duties unauthorized and failed to return, leaving narcotics and other medications as well as his patients unattended. Respondent is a licensed practical nurse in the State of Florida and is the holder of license number 0619601. On June 18, 1981, Respondent, through his employer, Temporary Nursing Services, Fort Lauderdale, Florida, was assigned to work the 3:00 P.M. to 11:00 P.M. shift at Hollywood Hills Nursing Home, Hollywood, Florida. Respondent, through a prehearing stipulation, admits that he walked off his assigned duties at Hollywood Hills Nursing Home, where he was assigned as a practical nurse without authorization or prior notice to the director of nursing or other person of similar authority. While Respondent admits to such conduct, he contends that his reasons for doing so were based on the fact that he encountered numerous problems which he was unable to resolve independently and that he therefore properly left his assigned duties. Respondent, by letter dated July 9, 1981, to Petitioner, recites that the problems he encountered included: (1) nurses who were leaving their duty stations when he reported to work failed to advise him that several patients needed to be restrained or needed other professional assistance; (2) his inability to locate insulin for diabetic patients during the first hour of his assigned shift; (3) the lack of concern on the part of the other nursing assistants assigned to his floor; (4) the lack of continuity in the medication records which prevented him from ascertaining with any degree of accuracy, the status of the charts and medication records of each patient; (5) the absence of a uniform unit dosage for patients; (6) the failure of the charge nurse to render any aid or assistance to him in an effort to straighten or ascertain patients' medication dosages; (7) his inability to contact the director of nursing hose phone number was left him to try to contact in the event of an emergency; (8) his inability to update doctors regarding the conditions of their patients because he did not have the pertinent information regarding their ailments; (9) his inability to advise family members of the condition of their family members who were patients because he did not know, nor was he advised of, their condition; and finally (10) his inability to make patient rounds at the beginning of his shift based on his attempt to establish priorities and locate needed medication records, etc. (Joint Exhibit No. 1) Patricia Lopes, the Director of Nursing at Hollywood Hills Nursing Home, was so employed on June 18, 1981, when Respondent was assigned through the services of Temporary Nursing Services, Fort Lauderdale, Florida. Patricia Lopes greeted Respondent upon his arrival at his assigned duty station at Hollywood Hills Nursing Home and gave him a brief orientation of the facility, a diagnosis of the patients and their conditions and generally showed him the charts and medication records for the patients on the floor to which he was assigned. At approximately 6:45 P.M., one of the aides searched for Respondent and was unable to locate him. A further search revealed that Respondent did not chart the medication record for any patient while he was on duty. The census at Hollywood Hills Nursing Home includes post-stroke patients as well as cardiac- arrest patients. As stated, Respondent admits to having left his assigned duties without authorization from or prior notification to the director of nursing or other supervisory or management personnel. He later acknowledged that his doing so was potentially dangerous to the patients to which he was assigned to attend and now understands that he should not have left his assigned duty station without notification to a person or persons in charge. Respondent administered medication to some patients but failed to chart or otherwise make a notation thereof on the patients' records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's practical nursing license number 0619601, be suspended for a period of one (1) year. RECOMMENDED this 21st day of January, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1982. COPIES FURNISHED: William M. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jerry Wayne Gilliam 4848 N. W. 24th Court #107 Lauderdale Lakes, Florida 33313
The Issue The issues for determination are: (1) whether the deficiency alleged as a result of a Complaint Survey conducted on June 18, 2002, is appropriately classified as a Class I deficiency; (2) whether a fine in the amount of $10,000 is appropriate; (3) whether the "Conditional" licensure status, issued October 29, 2002, is warranted; and (4) whether the alleged violation constitutes grounds for a six-month survey requirement and $6,000 survey fee.
Findings Of Fact At all times material hereto, AHCA was the state agency responsible for evaluating nursing homes in Florida pursuant to Section 400.23(7), Florida Statutes. As such, in the instant case it is required to conduct a complaint evaluation of nursing homes in Florida in accordance with Section 400.23(8), Florida Statutes (2000). AHCA's evaluation of Florida nursing homes requires an assignment of a rating of standard or conditional to each licensee. In addition to its regulatory duties under Florida law, AHCA is the state "survey agency," which, on behalf of the federal government, monitors nursing homes that receive Medicaid or Medicare funds. Carrollwood Care Center is a nursing home located at 15002 Hutchinson Road, Tampa, Florida, and is duly-licensed under Chapter 400, Part II, Florida Statutes. On June 18, 2002, a complaint investigation survey was conducted at Carrollwood by Pamela Mraz, a surveyor for AHCA, who visited the Carrollwood facility to inquire into the death of Resident 1 that occurred on May 5, 2002. Ms. Mraz is a registered nurse (RN) with over 20 years of nursing experience, including having served as a director of nursing and having completed more than 100 surveys of long-term care facilities. She has been a surveyor for AHCA since September 2001. During the course of her complaint survey of the facility, Ms. Mraz examined the facility's records pertaining to Resident 1's death. Her review indicated that the death of Resident 1 constituted failure to meet the standards set-up under Tag F324, as identified on the Form 2567-L of the U.S. Department of Health and Human Services' Health Care Financing Administration. The parties refer to this form as the HCFA 2567-L or the "2567." The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identified each alleged deficiency by reference to a tag number. Each tag on the 2567 includes a narrative description of the allegations against Carrollwood and cites a provision of the relevant rule or rules in the Florida Administrative Code violated by the alleged deficiency. To protect the privacy of nursing home residents, the 2567 and this Recommended Order refer to the resident by a number (i.e., Resident 1) rather than by the name of the resident. AHCA must assign a class rating of I, II or III to any deficiency that it identifies during a survey. The rating reflects the severity of the identified deficiency, with Class I being the most severe and Class III being the least severe deficiency. There is one tag, Tag F324, at issue in the instant case, and, as a result of the complaint survey of June 18, 2002, AHCA assigned Tag F324 a Class I deficiency rating. Tag F324, reflecting the requirement of 42 C.F.R. Chapter 483.25(h)(2), requires a facility to ensure that each resident receives adequate supervision and assistance devices to prevent accidents. AHCA's witness, Ms. Mraz, was asked her opinion only regarding the facility's compliance with the requirements of Tag F324. She opined that Carrollwood did not provide adequate supervision and assistance devices to prevent the accidental death of Resident 1. Resident 1's first admission to Carrollwood was on March 27, 2002. He was 89 years of age at the time of his admission, weighted 118 pounds and was 5'3" in height. He did not speak English. His initial screening assessment form reflected that he suffered with both short-term and long-term memory impairment, incontinency, decubitus ulcer, prostate cancer, malnutrition, heart problems, and was determined by Carrollwood's staff to be "bedfast" (in bed not less than 22 hours per day). Resident 1's range of motion was limited to his hands, arms and legs. Even though he could make occasional slight changes in body or extremity positions, he was unable to make frequent or significant body changes independently. Resident 1 was incapable of getting out of bed on his own, had no involuntary body movements, and required two persons to physically assist him in bed mobility. He could not use a wheel chair and experienced short periods of restlessness demonstrated by crying out in Spanish, his native language. Carrollwood's Fall Risk Assessment observation indicated that Resident 1 was virtually immobile and was, therefore, a minimum risk for falls. His assessment and care plan were adequate for his condition and comfort. Resident 1 was placed in a semi-private room with his wife. A curtain between the beds separated them. Viewed from the foot of Resident 1's bed, his wife's bed would be to the left of his bed. On the right side of his bed, an upper half side rail was placed as an enabler. On April 17, 2002, three weeks after his admission, Resident 1 was discharged to the hospital due to an increase in his temperature and congestion. On April 30, 2002, he returned from the hospital and was readmitted to Carrollwood. At this time, his second admission, he was assessed by Carrollwood's staff to be in a much weaker condition than at his initial admission, with additional diagnoses of sepsis, pneumonia, psychosis, anemia, depression and malnutrition. Upon his second admission to Carrollwood, his assessment determination changed, and Resident 1 was classified as "bed-bound," as opposed to the prior assessment of bedfast, and he required extensive assistance, at least two persons to physically assist in transferring and dressing him with use of the upper bed side rail as enablers. The doctors' notes made in conjunction with the second admission did not include the use of upper side rails as in-bed enablers. The Nurse Evaluation Assessment, dated May 1, 2002, reported that Resident 1 was completely dependent on staff for all his daily living activities, i.e., bathing, grooming, dressing, feeding, and toileting, because he could not do these functions for himself. His Resident Care Plan reflected that he had a "potential for falls due to decreased cognition and physical mobility." His bed was lowered, the head of his bed was elevated, a second mattress was added, and a pneumatic call bell was attached. With knowledge of his updated medical history and further weakened condition, the nursing staff made an independent decision to use one upper bed side rail on Resident 1's bed. The staff had received a Food and Drug Administration alert regarding potential dangers resulting from the use of side rails as recently as February 2002, and had participated in in- service training sessions concerning the use of side rails. AHCA presented no evidence of authoritative directives for "the care giver's use of side rails" in long-term care facilities. There was no evidence of statutory proscriptions, rules or accepted industry standards relating to the use of side rails in long-term care facilities. Therefore, each long-term care facility, including Carrollwood, may independently determine when, where, how and under what circumstances bed side rails will be used. Thus, AHCA's evidence of record affords no substantial basis to support its allegation that Carrollwood's decision to use an upper side rail on Resident 1's bed demonstrated a lack of adequate supervision that would cause or tend to cause immediate harm and/or death to Resident 1. Marie Gianan, RN and MDS Coordinator for Carrollwood, which included coordination of assessments and care planning since July 2000, determined that Resident 1's April 17, 2002, transfer to the hospital was a "complete discharge" from Carrollwood. According to Ms. Gianan, Carrollwood's policy, as she understands it, is that once a resident is completely discharged, his or her medical records go to medical storage. Thus, Resident 1's return on April 30, 2002, was considered and treated as a new admission requiring an original initial assessment, a new care plan and 30 days thereafter, preparation of a new MDS. The procedure, as understood by Ms. Gianan, was to not consider Resident 1's old medical records, old care plans, and old MDS, but rather to start anew based upon staff's observations, inquiries, and a check and review of current medical records and, thereafter, formulate an assessment and initial care plan within 24 hours of admission. The MDS would follow within 30 days after completion of the initial care plan. Resident 1's April 2, 2002, care plan and fall risk assessment, indicated the following: skin problems that required repositioning him in bed every two hours; bath to be given on shower day or twice weekly; dehydration requiring liquids every night; placing his bed in a low position to prevent falls due to his decreased physical mobility; providing a pneumatic call bell; and using one upper side rail as an enabler placed on his bed. The care plan for Resident 1 met all requirements and does not indicate nor support an allegation of lack of supervision or inadequate care. Ms. Gianan was adamant that Resident 1, although maybe weaker in body strength than before his discharge on May 8, 2002, was "mobile," per her interpretation of the word on his April 2, 2002, admission. She disagreed with the March 27, 2002, assessment of Resident 1 as being "immobile." Ms. Gianan has opined that, "immobile means you do not move in bed--you just stay in the position that you are put in--I do not agree with that evaluation." Carrollwood's policy permits its MDS Coordinator to independently evaluate, assess, interview and otherwise determine the status and condition of each resident. On May 5, 2002, the date of Resident 1's death, at approximately 6:45 a.m., Ann Nickerson, certified nursing assistant (CNA), entered Resident 1's room to empty his catheter. During this process, Resident 1 cried out in Spanish. His wife, awaken by the activity and Resident 1's cry, said to Ms. Nickerson "he is alright," and Ms. Nickerson completed her task and departed the room. An hour and one-half later, at approximately 8:15 a.m., Jermaine Martinez, CNA, entered Resident 1's room with his breakfast tray. Mr. Martinez found Resident 1 on the floor with his clothing pulled upward around his torso. His head was wedged between the bed's upper side rail and the mattress, with his chin resting upward against the upper side rail, thereby hyperextending his neck. Resident 1 had no pulse or respiration when found by Mr. Martinez. The Hillsborough County Medical Examiner, in an amended1 death certificate, listed Resident 1's cause of death as positional asphyxiation; the result of a lack of oxygen due to the position of his head wedged between the bed mattress and the upper side rail and hyperextension of his neck. Within a few minutes of the discovery of Resident 1 on the floor by the Mr. Martinez, Resident 1's family entered the facility for a visit and was stopped in the hall by the duty nurse who informed them of his death. During that brief period, and following the instructions given by the duty nurse, Mr. Martinez and Ms. Nickerson moved the body of Resident 1 from the floor and placed him back in his bed, pulling the cover up to his chin. Thereafter, staff contacted Carla Russo, director of nursing, for further instructions. Following instructions, staff called and released Resident 1's body to the funeral home without first notifying the Hillsborough County Medical Examiner. Because of this action, in violation of policy, no autopsy was performed on the body. It is undisputed that the facility's failure to immediately notify the Hillsborough County Medical Examiner of Resident 1's death constituted a violation of the facility's own policy and procedures regarding the death of residents at the facility. AHCA did not cite the facility for this particular facility policy violation. Therefore, there is no evidence to support an allegation of lack of supervision or inadequate care for this policy violation. Based upon the care plan, nurse's notes, and medical records, it is undisputed that staff visited Resident 1's room an average of every two and one-half hours, if not more often, to provide medications and to attend the personal needs for both Resident 1 and his wife, during each 24-hour period from April 2, 2002, to May 5, 2002. During those staff visits, while attending one occupant, staff would, could and did observe the other occupant. During those frequent room visits during the 24-hour period preceding Resident 1's demise, staff had not observed him to be restless or to independently move his body about in his bed. There is no evidence that Resident 1 was not under staff's observation, and, by implication, not under staff's supervision for any overly long period or an extended period of time of more than two and one-half hours during the April 2, 2002, through May 5, 2002, time period. The evidence does not indicate or support an allegation of lack of supervision or inadequate care by the facility. From all medical records in evidence, it is clear that during his residency in the facility, Resident 1 never exhibited the type of behaviors that would indicate to staff he was a risk for falls; he had no recorded prior history of falls at home, at the hospital or at Carrollwood, he did not use a wheelchair and he could not independently ambulate. He was never observed by staff attempting to get out of bed, and his only infrequent and occasional expressions of restlessness were "crying out" in Spanish. The evidence of record does not indicate or support an allegation of lack of supervision or inadequate care by the facility. AHCA presented no evidence of sufficient reliability to provide a plausible foundation upon which to conclude that the cause of Resident 1 moving from his bed-bound prone position to a sitting position on the floor with his neck wedged between the upper side rail and the bed mattress was due to a lack of supervision or inadequate care by the facility's staff. The evidence supports a plausible conclusion that Resident 1's demise, although inexplicable from the evidence of record, was nonetheless accidental.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing in its entirety the Administrative Complaints filed in this cause. DONE AND ENTERED this 27th day of March, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 27th day of March, 2003.
Findings Of Fact Respondent is a registered real estate salesman and between the period of May 10, 1973 and May 15, 1974, he was registered with the Florida Real Estate Commission as a salesman with International Real Estate Coordinators, Inc., Miami, Florida (Petitioner's Exhibit 7). In the summer of 1973, Respondent was introduced to a land developer named Armand Archer by a realtor in Fort Lauderdale. Through this meeting, Respondent learned of a parcel of land located in Santa Rosa County consisting of about 8,000 acres which was owned by a joint venture consisting of the Santa Rosa Development Corporation, a Florida Corporation controlled by Mr. Archer, and the Charter Development Corporation of Jacksonville, Florida. Respondent became interested in the potential of the land for development and visited Archer in Pensacola in order to look over the property. At that time, he gave Archer his card as a salesman for International Real Estate Coordinators, Inc. Archer thereafter gave the Respondent a verbal open listing to sell the land. Other listings had been or were later given to other real estate firms. According to the Respondent, the arrangement with Archer was that he would pay the Respondent $500.00 a week as salary for services to be rendered in promoting the sale of the land, plus 20 percent of the stock in the Santa Rosa Development Corporation. On the other hand, Archer testified that the Respondent was simply acting as a salesman for International Real Estate Coordinators, Inc., and that he advanced Gomer some $6,800 during the period July, 1973 to January, 1974 for expenses and as a draw upon any future commissions if the Respondent was successful in selling the tract of land. Archer conceded, however, that he had had discussions with the Respondent to the effect that if he eventually made the sale, he might be brought into the company. Archer maintained that Respondent was never an employee of Santa Rosa Development Corporation even though the Respondent worked full-time out of the offices of that corporation. During this period, Respondent exerted great efforts in attracting prospective purchasers for the real estate in question, arranged for an appraisal of the land, assisted in designing a plan for development of the property and publishing a brochure, and arranged for financing by Bankers Trust Company of New York. Respondent devoted approximately eight months to these endeavors in behalf of Mr. Archer and the Santa Rosa Development Corporation (Testimony of Marlene Archer, Armand Archer, Bernard Gomer; Petitioner's Composite Exhibit 1; Respondent's Exhibit 8). Although Respondent denied actively working for International Real Estate Coordinators, Inc. during the period of time he was pursuing the interests of Santa Rosa Development Corporation, the evidence shows that he did continue to represent International Real Estate Coordinators, Inc., to some degree during that time. In August, 1973, Mr. Richard E. Grant, the real estate broker for International Real Estate Coordinators, Inc. terminated his association with that corporation. Although Mrs. Archer testified that she was aware of this fact and had urged the Respondent to secure another broker during the fall of 1973, the Respondent disclaimed knowledge of Mr. Grant's action until January, 1974, after discussions with representatives of the Florida Real Estate Commission. He was instrumental in then having Mr. Archer become the President of International Real Estate Coordinators, Inc., in January, 1974, for a brief period of time for the reason of securing a new broker in order that any real estate commission could be shared by the two corporations if a remaining portion of the land in Santa Rosa County was purchased. To this end, Mr. Archer as president of International Real Estate Coordinators, Inc., gave permission to Mr. Manuel Grossman to serve as an acting broker for that corporation and Mr. Grossman proceeded on January 11, 1974 to apply to the Florida Real Estate Commission for a multiple certificate as broker for International Real Estate Coordinators, Inc. Respondent, on January 12, 1974, wrote to the Florida Real Estate Commission advising that he had only recently learned of Mr. Grant's departure from the corporation, and that a new broker had been secured. (Testimony of Marlene Archer, Armand Archer; Respondent's Composite Exhibits 3, 4 & 5). In late January, 1974, Respondent and Archer had a falling out which apparently stemmed from Respondent's discovery that a civil lawsuit had been filed against Archer by others in federal court concerning the Santa Rosa County land. By a letter, dated February 1, 1974, Archer advised Respondent that he should remove himself and his possessions from the office at his earliest opportunity. Respondent thereafter on May 15, filed suit against Armand Archer and the Santa Rosa Development Corporation in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, asking damages for failure of the defendants to abide by their agreement to give him a 20 percent equity interest in Santa Rosa Development Corporation for services rendered and to be rendered. The complaint in this lawsuit was amended in February, 1975, to recite that Archer had hired the Respondent on or about May 10, 1973 to be a full-time employee of Santa Rosa Development Corporation at a weekly salary of $500.00 as compensation for services to be rendered to the corporation and, that he was so employed for a period of 36 weeks, thereby earning a total salary of $18,000.00 of which was due and owing the sum of $14,000.00 as back salary Additionally, the amended complaint alleged that Respondent was to receive as compensation for his services to be rendered to the Corporation 20 percent of its stock to be conveyed to him by Archer and that, despite numerous requests, Archer had refused to convey the said stock to him. Respondent claimed at the hearing that he filed this suit upon the advice of his attorneys who had provided him with bad advice (Testimony of Gomer; Petitioner's Exhibits 2-6; Respondent's Exhibit 6). Official records of the Florida Real Estate Commission do not show Santa Rosa Development Corporation as a registered corporate real estate broker or that during the period May 10, 1973 to May 15, 1974 Respondent registered Santa Rosa Development Corporation as his employer (Petitioner's Exhibit 7).
Findings Of Fact On August 20, 1975, the Appellant, MGIC - Janis Properties, Inc., developer, filed an Application for Development Approval for Development of Regional Impact (hereinafter referred to as the "Application") with the Withlacoochee Regional Planning Council and the North Central Florida Regional Planning Council. A copy of that application as amended was attached as Exhibit "B" to the Appellants' petition and is made a part of the record herein. The Exhibit "B" has two parts, the initial part consisting of the Development of Regional Impact, Planning Concepts and Zoning Requests and the latter part consisting of addendum one. The submission of the application to the two Regional Planning Councils was necessitated by the fact that the property covered by the application lies in both Alachua and Marion Counties, which counties are within the jurisdictional areas of the North Central Regional Planning Council and the Withlacoochee Regional Planning Council, respectively. Following the preliminary review by the Withlacoochee Planning Council, the Council, by letter of September 25, 1975, notified Marion County, by and through Mr. John Hastings, Zoning Director, Marion County Zoning and Building Department, that the Planning Council was ready to proceed with the formal review of the application and further advising that public hearing dates should be scheduled to comply with the requirements of the Florida Environmental Land and Water Management Act of 1972 (Chapter 380, Florida Statutes). A copy of that letter was attached as Exhibit "C" to Appellants' petition and is made a part of the record herein. On October 7, 1975, the Board of County Commissioners of Alachua County (hereinafter referred to as "Alachua County") scheduled a public hearing on the application before the County Commission to be held at 4:30 P.M. on December 9, 1975, in the Alachua County Courthouse, Gainesville, Florida. The Appellants were given notice of the public hearing by a copy of the letter of October 8, 1975, from Howard Weston, County Administrator to Alachua County, a copy of that letter appearing as Exhibit "D" to the Appellants' petition and made a part of the record herein. On October 14, 1975, the Appellee scheduled public hearings on the application before the Marion County Planning and Zoning Commission held at 4:00 P.M. on January 5, 1976, at the Marion County Courthouse, Ocala, Florida, and before the Board of County Commissioners at 9:00 A.M. on January 21, 1976, at the Marion County Courthouse, Ocala, Florida. Notification to the Appellants of these public hearings was given by letter of October 15, 1975 from Ronald H. Miller, Marion County Planner, a copy of that letter being Exhibit "E" to the Appellants' petition and made a part of the record herein. On November 6, 1975, the North Central Florida Regional Planning Council prepared, adopted and sent to Alachua County their recommendations regarding the application, which recommendations recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "F" to the Appellants' petition and is made a part of the record herein. On November 13, 1975, the Withlacoochee Regional Planning Council, meeting in full session, prepared, adopted and sent to Marion County, their recommendations regarding the application, which recommendation recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "G" to the Appellants' petition and is made a part of the record herein. On December 9, 1975 Alachua County held a public hearing on the Appellants' application and that public hearing was continued on January 6, 1976. On December 24, 1975 the Marion County Planning Department prepared and sent to Marion County their considerations and recommendations regarding the application, which recommendations recommended approval of the Appellants' proposed project subject to certain conditions. The recommendations of the Marion County Planning Department were based in part on comments provided by the Marion County Engineer and the Environmental Health Division of the Marion County Health Department. A copy of these considerations and recommendations was attached as Exhibit "H" to the Appellants' petition and is made apart of the record herein. On January 5, 1976, the Marion County Planning and Zoning Commission held a public Hearing on the Appellants' application, which public hearing was continued on January 12, 1976. At the conclusion of the public hearing, after having heard and considered all interested parties and pertinent facts and matters with regard to the Appellants' application and after having considered the recommendations of the Marion County Planning Department, the Withlacoochee Regional Planning Council and all testimony and information presented at the public hearing, the Marion County Planning and Zoning Commission recommended approval of Appellants' application subject to the conditions previously recommended by the Withlacoochee Planning Council and the Marion County Planning Department, and subject to certain other conditions. Copies of the minutes of the special meeting of the Marion County Planning and Zoning Commission meeting of January 5, 1976 and January 12, 1976 were attached as Exhibit "I" and Exhibit "J" respectively to the Appellants' petition and are made a part of the record herein. On January 6, 1976, Mr. Al Lewis, Director of the Department of Planning, Alachua County, prepared and sent to Alachua County, by and through Mr. Howard Weston, County Administrator, his recommendation regarding the application, which recommendation recommended approval of the Appellants' proposed project subject to certain conditions. A copy of those recommendations was attached as Exhibit "K" to the Appellants' petition and is made a part of the record herein. On that same date, Alachua County, after having heard and considered all interested parties and pertinent facts and matters with regard to Appellants' application, and after having considered the recommendations of the Alachua County Department of Planning, the North Central Florida Regional Planning Council and all testimony and information presented at the public hearing, issued a development order approving Appellants' application subject to certain conditions. A copy of said development order was attached as Exhibit "L" to the Appellants' petition and is made a part of the record herein. On January 21, 1976, the Appellee, Marion County, held a public hearing on the Appellants' application, which public hearing was continued on February 10, 1976 and February 18, 1976 and the record of those hearings have been transcribed and made a part of the record herein. After the January 21, 1976 meeting before the Marion County Board of County Commissioners in which discussion was entered into on the recommendations arising from the Withlacoochee Planning Council meeting on November 13, 1975 and the recommendations of the Marion County Planning Department of December 24, 1975, the Appellants in the person of their attorney, Stephen A. Scott, and the architect for the Appellants, David Reaves, submitted two letters dated February 4, 1976, which set forth the position of the Appellants on the aforementioned recommendations of the Planning Council and the Marion County Planning Department. Copies of these letters of February 4, 1976 have been filed with the State of Florida, Division of Administrative Hearings, and are made a part of the record herein. On February 13, 1976 the Marion County Plat Committee prepared and sent to Marion County suggested wording changes for previously recommended conditions to the approval of Appellants' application. A copy of these suggested working changes is attached hereto as Exhibit "M" to the Appellants' petition and made a part of the record herein. In response to the February 13, 1976 Marion County Plat Committee suggested wording changes for previously recommended conditions and/or modifications applicable to the application dated February 13, 1976, the Appellants' attorney, Stephen A. Scott filed a letter of February 18, 1976. This letter is filed in the case by permission of the Hearing Officer and is made a part of the record herein. At the conclusion of the public hearing on February 18, 1976, Marion County adopted a resolution denying approval of Appellants' application. A copy of said resolution was attached as Exhibit "A" to Appellants' petition and is made a part of the record herein. In the course of the DRI process, not all aspects of the application, Exhibit "B", were disputed by the various planning agencies, the Appellee and the Intervenor. Moreover, Alachua County, Florida has given its approval and any reference to action before that governmental body is for the limited purposes of describing the Marion County, Florida application. Therefore, the discussion of the facts will be in terms of those facts which were disputed and not those facts in support of the application which are not in dispute. The points of contention between the parties are primarily discussed in the Exhibit "B", Development of Regional Impact, Planning Concepts and Zoning Requests and its addendum; Exhibit "G", the recommendations of the Withlacoochee Regional Planning Council of November 13, 1975; Exhibit "H", the Marion County Planning Department, Statement of considerations and recommendation; Exhibit "J", the minutes of the Marion County Planning and Zoning Department meeting, January 12, 1976; the letters of February 4, 1976, from the representatives of the Appellant, David Reaves and the Appellants' attorney Stephen A. Scott; Exhibit "M", the Marion County Plat Committee suggested wording changes for previously recommended conditions and/or modifications, dated February 13, 1976; the discussion of the aforementioned document in the course of the public hearings of January 21, 1976, February 10, 1976 and February 18, 1976 and the Exhibit "A", Resolution and Development Order of the Marion County Board of County Commissioners. The proposed development is a horse ownership oriented community located 12 miles south of Gainesville, Florida and 18 miles north of Ocala, Florida and it encompasses an area of approximately 5 square miles (3200 acres). The statement of market study is found on page 87 of Exhibit "B". This project is located on the border of Alachua and Marion Counties, Florida. One sixth of this area lies within Alachua County and the remaining area in Marion County. The highway system as shown in map "J" of Exhibit "B". The project has five developmental phases as described in the Exhibit "B" and within those developmental phases are planned construction of midrise, townhouse, patiohouse, and single family dwellings for a total population build out in all phases of approximately 8,234 residents. This project also anticipates lodges to be built in the various phases to accommodate additional average yearly population of 1,200 persons. Its estimated that visitors will total 834 at the completion of all phases, for a total of 10,000 plus persons within the development at the end of the final phase. Further discussion of these statistics may be found on page 15 of Exhibit "B". At present the area is primarily agricultural and is zoned as such. Within the immediate vicinity of the project are the towns of Micanopy and Mcintosh and the community of Evinston. These communities together with the population immediately outside these towns would total approximately 2,500 people. Consequently, the area can best be described as rural, as opposed to the suburban nature of the proposed development. The difference in character in the locale as it presently exists and as is proposed by the development plan is the principal point of contention between the appellants on the one side, and the Appellee and Intervenor on the other. It is the suggestion of the Appellants that the project can be developed and carry with it a suburban nature without being inconsistent with or destroying the rural character of the surrounding towns and unincorporated areas. On the other hand the Appellee and Intervenor suggest that to allow this project would destroy the rural lifestyle of the area. The transcript of the proceedings before the Board of County Commissioners, Marion County, Florida held on January 21, 1976, February 10, 1976, and February 18, 1976 developes in detail the opposing points of view on the issue of the compatibility of the development with the present surroundings. Considering the distance between the proposed development and the larger communities in the areas to wit, Gainesville and Ocala, the rural nature of the land at present and the fact that this development would be potentially the third largest community in the Alachua County and Marion County area, the development does not appear to be compatible with its surroundings. The Appellant has proposed a private roads community, and this concept is contrary to the express policy of Marion County, Florida. Prohibition to this form of private roads is set forth in subsection 2A.13 of the Public Works Manual, Marion County, Florida. There is concern by the Appellee on the question of access of the public through the private road system, in that it would create a necessity the public to go around the entire development. However, at present there are public roads serving the area and it is not contemplated that future public roads will go through the project. The Appellee is also concerned with maintenance of speed limits on private property and resubdivision of the parcel of land in the future where private roads have been allowed. The restriction against private roads has been waived in Marion County in the past and could be waived in this instance if a private road network or a combination of private and public road network were built in the development. The Appellee would require that the network be built to Marion County Specifications, and the Appellant agrees. There are proposed to be built two bridges. One bridge across Interstate-75 incident to the last phase of the project and other bridge across SE-10, County Line Road. The Appellee would require conceptual approval of these matters by the permitting agencies going into the project, and the bridges would be constructed at the developers' expense prior to the development phase effected by the bridges. Other roads affected by the project are State Road 320 and Hickman Road which are in the southern part of the project. If these roads were utilized, access for emergency, police, fire and other needs of similar nature would have to be worked out. In connection with the question of access, the developer had initially proposed that the project be a gated community with private security patrols within the community. In view of the considerable debate in the course of the proceedings about this technique of a gated community and private security patrol, the developer has indicated a willingness to forgo the utilization of perimeter walls or fencing and private security patrols or entrance guards. As mentioned before, the land selected for development is presently zoned agricultural and to achieve the purposes of the project the zoning would have to be changed to a type of residential zoning. As a part of the zoning consideration, the Appellee has asked that the Appellant submit a master plan in conjunction with or as a part of the zoning change. The conditions of the master plan are as set forth in pages 6 - 9 of the December 24, 1975 report which is Exhibit "H". The Appellants' specific response to the question of the master plan as it relates to matters of zoning is found in the February 4, 1976 letter of attorney Stephen A. Scott. In summary, the developer is concerned with the wording of some of the provisions of the December 24, 1975 report, Exhibit "H", and with the repetitious aspects of the master plan, in view of the fact that the questions have been addressed through the DRI. The letter also indicates a reluctance to divulge detailed financial information about the developer. There are certain aspects about the development proposal which contemplate the sponsorship by a homeowners association. Among these aspects are security patrol, fire protection, sewage treatment, recreational facilities, maintenance of recreational facilities, water treatment and service, and eventual health care. These items are in addition to the construction and maintenance of private roads, to include storm drainage. The Appellee has requested that the developer in detail the intricacies of the homeowners association and the method by which it may accomplish the aforementioned goals. Again this discussion is found in pages 6 - 9 of the Exhibit "H". The related matters of health care in the initial 4 stages and long term treatment at the point of final build out must be accomplished by coordination with emergency transportation to the hospitals in the Gainesville and Ocala area. The health care facilities are shown on map "I" to the Exhibit "B". At some point in time, it is the feeling of the Appellants that a fulltime physician will establish a clinic due to the number of persons in the development community, without the need for any subsidy by the developer. Medical evacuation seems to be suggested as a function of the homeowners association, in the latter phases. The appellant and appellee acknowledged that the acreage for a landfill site for solid waste disposal would be off the grounds of the project. This would need to be within a five mile travelling of distance to satisfy the Appellee and to meet the requirements of the State of Florida, Department of Environmental Regulation. The acreage necessary would be 35 acres. The resolution of the question of location was not resolved between the parties; however, it seems that some plan by which the developer purchased a site either by having that site selected by the Appellee and then purchasing the site or paying a fixed sum of money to the County for such a purpose is indicated. The unresolved issues pertain to the purchase of the equipment necessary and the arrangement for the maintenance of the site location. In the past in Marion County, this type of landfill has been maintained as a part of commercial contracts for collection and disposal of solid waste1 and nothing suggests that this could not be achieved in this instance. The soil description and analysis is found beginning on page 32 of Exhibit "B" and within maps E, F, and G of Exhibit "B". An examination of the report shows that much of the soil is Blichton-Kendrick Association which has slow permeability. Other places are Bayboro-Placid Association which is low wet lands that have interspersed with them really poorly drained deep sands. Within this overall network it is intended that a sewage plant be placed, which treats the sewage and utilizes the activated sludge method with some form of additional treatment for spray irrigation of the remaining effluent. The site location and details of the treatment plan will be approved by the State of Florida, Department of Environmental Regulation. There are 243 ranches and ranchettes which are intended for septic tank utilization and individual wells for water supply. Discussion of these matters is found on pages 93 through 96 of Exhibit "B". Storm water disposal, in consideration of the 100 year flood elevations are found on pages 97 through 101, and map "G" of Exhibit "B". Some special problems that have occurred in the past pertain to the question of storm water disposal. The Old Field Pond area has had flooding. Flooding has occurred across SE-10 over U.S. 441 and into the adjacent land owner's property. Moreover, the Fire Tower Road which is in the area of SE-10 has flooded and one requirement would be consideration of those property owners who utilize SE-10 as an alternate route to the so called Fire Tower Road in times of flooding. As shown in the map on page 34 of Exhibit "B" there are a number of recharge wells in the active Old Field Pond area. It is the feeling of the Appellee through its staff reports, i.e., the Withlacoochee Planning Council report of November 13, 1975 and the agreement of other staff agencies that these recharge wells should be plugged to avoid the problem of liquid waste going directly back into the Floridian Aquifer, which flows under the property. The developer feels that this should only be done after testing. Discussion was also entered into about the coordination of sewage treatment and water supply needs with the surrounding communities of Mcintosh and Micanopy. The provision for electric power is discussed by letters from the Florida Power Corporation and Clay Electric Cooperative, Inc. found on pages 112 and 113 of Exhibit "B". There is concern that due to prior power shortages in the immediate service area, that further service obligations would diminish the quality of the electric service. This indication runs contrary to the comments within the letters of the two utility companies and it has been suggested that greatly increased needs would promote more efficient electric service. This latter argument, does not address the conditions in the early phases of development. A matter of much discussion was the need for schools, fire protection and police protection. If the private security and fire service concept is rejected, there is no indication whether these needs could be met by the Appellee, although tax revenues would be generated to assist in responding to those needs. On the former question of schools, there has been preliminary contact by the developers agent in considering regional schools, since the project lies within two counties, but that contact has been very limited. The question of site location for a school to service this community and surrounding communities and the sharing of the costs of such implementation is also in the preliminary stages. Therefore, matters concerning the school system are yet to be resolved. The project contemplates a number of recreational areas, lodges and stores. The lodges and stores would be open to the public, but the recreational facilities are primarily designed for the residents. The discussion of the recreational areas within the project brings to light the question of the possible service community which would grow out of the development. It has been estimated by the Appellant that 807 persons in terms of average annual construction employment will be needed for the five phases of the development. Discussion of these aspects of the project begins on page 82 of Exhibit "B". Based upon this projection, the possibility exists that some satellite community would form in the immediate vicinity of the project site, in view of the distances between the project site and the towns of Ocala and Gainesville. None of the surrounding communities, nor the developer have specifically addressed the deployment of the so called satellite community, in terms of housing, essential services and recreation. Another consideration which is in dispute is the archaeological significance of the project land and the necessary steps to preserve these archaeological finds. A discussion of the archaeology of this site is found on pages 59 through 80 of Exhibit "B". The dispute arises over the necessary steps to the preservation of the archaeologically significant sites, with the Appellee suggesting compliance with the recommendation of the archaeologist's report in Exhibit "B" and the Appellants desiring to make a site by site isolation of the significant archaeological finds and subsequent preservation of those sites at the point of development encounter. Another similar issue is game preservation. There is evidence that the Florida Panther has passed through the development area since tracks were found on the western part of the proposed development. In addition, the Florida Sandhill Crane and Wood Ibis have been sited at Tuscaeilla Lake, on the wet prairie just south of that body of water at the northwest pond. Further discussion of these endangered species and other species of wildlife is found on pages 56 and 57 of the Exhibit "B". A statement by a witness of the Florida Game and Fresh Water Fish Commission was to the effect that the Florida Panther will not stay in the area which is developed to the extent proposed herein. Finally, consideration was given to the question of the sequence of permitting within the five phases of the proposed project. The Appellee has expressed a desire to withhold local permits until federal and state permits were given, which would have an effect on how local permits would be granted. The Appellants are concerned that these local permits in the initial phases, not be held up while waiting for federal or state permits which would pertain to a latter phase. This is a particular concern in view of the fact that the stated five year build out of the project does not seem to be realistic and the actual build out will be between ten and twenty years from the point of any DRI permitting. The requirement for obtaining federal and state permits prior to the local permits at the commencement of each phase and obtaining a general statement of commitment by the federal and state systems in the later phases, was discussed as a solution in the bridge over Interstate-75 and would seem an appropriate solution to other issues similarly in dispute.
Recommendation It is recommended that the Application for Development Approval for a Development of Regional Impact filed with the Withlacoochee Regional Planning Council on August 20, 1975 for preliminary review be denied. DONE AND ENTERED this 29th day of October, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen A. Scott, Esquire Post Office Box 1292 Gainesville, Florida 32602 MGIC - Janis Properties, Inc. 1550 Madruga Avenue Coral Gables, Florida 33146 Ernest Tew, as Trustee Suite B-1 901 Northwest Eighth Avenue Gainesville, Florida 32601 Mr. Jackson E. Sullivan Withlacoochee Regional Planning Council 3500 Northeast Silver Springs Boulevard Suite 4 Ocala, Florida 32670 R. Stephen Ryder, Esquire Marion County Attorney Board of County Commissioners of Marion County Post Office Box 81 Ocala, Florida 32670 Honorable Reubin O'D. Askew Governor State of Florida The Capitol Tallahassee, Florida 32304 Honorable Robert L. Shevin Attorney General The Capitol Tallahassee, Florida 32304 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32304 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32304 Honorable Bruce Smathers Secretary of State The Capitol Tallahassee, Florida 32304 Honorable Philip F. Ashler State Treasurer The Capitol Tallahassee, Florida 32304 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32304 Louis Hubener, Esquire 660 Apalachee Parkway Tallahassee, Florida 32304 Counsel for the Division of State Planning Florida Land and Water Adjudicatory Commission c/o Secretary of the Department of Administration 530 Carlton Building Tallahassee, Florida 32304 ATTENTION: David V. Kerns, Esquire Robert T. Roess, President Florida Investors Mortgage Corp Post Office Box 639 Gainesville, Florida 32601 Vice Chairman, Simonton-Tuscawilla Concerned Citizens
