Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. On July 24, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit wie, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:48 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $100.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this 3st day of “Pecen Axe , 20/3. Bele Wer fp Dusan S, Weep Diann S. Wordéalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this Go day of anvary , 2014 For the Division of Hotels | Hotels and Restaurants “Certified Article Number | oy 71596 4008 9411 516 1790 SENDERS RECORD.“ cory
The Issue The issue for determination in this proceeding is whether Respondents purchased and applied a restricted-use pesticide without a license and whether Respondents applied the pesticide in an improper manner.
Findings Of Fact Respondent, Port Malabar Country Club, is an unincorporated 18-hole golf course located in Palm Bay, Florida, owned and operated by Raysteff Corporation ("Raysteff"). Raysteff is a Florida Corporation, wholly owned by Mr. Robert Dolci. Respondent, Robert L. McDaniel, is the superintendent of golf course maintenance at Port Malabar Country Club and has held that position since 1985. On February 26, 1992, Respondent, McDaniel, purchased a 42 pound container of Kerb 50-W herbicide ("Kerb") from Harrell's Inc., located in Lakeland, Florida. Kerb contains chemicals that are classified as restricted- use pesticides by Petitioner. The labelling on the product's package contains the following warning: RESTRICTED USE PESTICIDE Because pronamide has produced tumors in laboratory animals, this product is for retail sale to and use only by Certified Applicators or persons under their direct supervision, and only for those uses covered by the Certified Applicator's certification. On February 26, 1992, neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license as required by Section 487.031(7), Florida Statutes. On March 4, 1992, Mr. Jason McDaniel was an employee of Raysteff and applied all Kerb to approximately three acres of the golf course. Respondent, McDaniel, supervised the application of the Kerb. Neither Respondent, McDaniel, nor any other employee, officer, or agent of Raysteff held a valid applicator's license at the time of the application. Respondent, McDaniel, had been licensed by Petitioner in 1975 and 1976 as a certified applicator. Mr. McDaniel's license expired on October 31, 1983. Mr. McDaniel took the examination required to obtain a new license after December 5, 1991. At the time he purchased and applied the Kerb, Mr. McDaniel had not been notified that he had passed the examination. Mr. McDaniel subsequently received his current license which expires sometime in 1996. The Kerb was applied properly around tees and greens on a sunny day with little wind. The treated area was not used by golfers until after the treated area was dry. The method of application did not expose either golfers or workers directly or by drift. The method of application complied with labeling precautions on the product. Neither package labeling, Petitioner's rules, nor Petitioner's policy establishes the amount of time needed for Kerb to dry. Petitioner failed to present any evidence to explicate its assertion that Respondents failed to determine that the Kerb was dry before allowing persons into the treated area. Evidence presented by Respondents was credible and persuasive. Respondents have no history of formal administrative disciplinary action for prior offenses. Respondent, McDaniel, properly applied the Kerb after taking the examination to obtain his license as a certified applicator and subsequently received that license. No harm was caused to any individual as a result of the application of the Kerb. There was no damage which would otherwise require expense to the state to rectify. Respondents did not benefit pecuniarily as a result of applying the Kerb prior to the time Mr. McDaniel received his license. However, Mr. McDaniel knew or should have known that he did not have his license when he purchased and applied the Kerb.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 19th day of October, 1993, at Tallahassee, Florida. DANIEL MANRY 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 19th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2230 Petitioner did not submit proposed findings of fact. 1.-10. Accepted in substance 11.-12. Rejected as unsupported by the weight of evidence Accepted in substance Rejected as irrelevant and immaterial Respondent's Proposed Findings of Fact 1.-2. Accepted in substance Rejected as irrelevant and immaterial Accepted in substance 5.-11. Rejected as irrelevant and immaterial 12. Accepted in substance COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 John S. Koda, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Elting L. Storms, Esquire Post Office Box 1376 Melbourne, Florida 32902-1376 Richard Tritschler, Esquire General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed a Class II violation as alleged in the Administrative Complaint, by failing to perform cardiopulmonary resuscitation (“CPR”) on a resident at its facility.
Findings Of Fact The undersigned makes the following findings of relevant and material fact: Joint Statement of Admitted Facts Filed by the Parties on February 19, 2021 The Agency completed a complaint survey of Pelican Garden on or about December 4, 2020. The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALF”) and enforcement of applicable state statutes and rules governing ALFs pursuant to chapters 429, Part I, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-36. Pelican Garden was, at all times material hereto, an ALF under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. The Agency’s surveyor cited Pelican Garden with a Class II deficient practice on or about December 4, 2020. On or about July 24, 2019, R #1 was a resident at Pelican Garden’s facility. Pelican Garden’s procedure for honoring a resident’s Do Not Resuscitate (“DNR”) Order includes circling the “DNR” located on the face sheet (information sheet) if a copy of the DNR is received and is on file at the facility. Pelican Garden’s admission paperwork includes a “Memo” initialed by the resident or representative to acknowledge that the facility has requested a copy of the resident’s DNR Order, if one exists. Pelican Garden’s DNR policy requires that a resident or representative provide the facility with a copy of a DNR Order on yellow paper, and then the facility files the order and places the resident on the Do Not Resuscitate Order (“DNRO”) list. Pelican Garden’s DNR policy requires that if a resident has a DNR on file, the facility will place a “butterfly” on the back of the resident’s door in their room with the resident name on the butterfly to notify staff to not perform life saving measures including but not limited to CPR. R #1’s executed contract, dated November 2, 2018, revealed a DNR form was requested from the resident’s representative as shown by the representative’s initials on the DNR policy and procedure page. R #1’s resident face sheet (Information Sheet), dated November 2, 2018, did not have a circled DNR Order, indicating that the resident did not have a DNR on the date of R #1’s death. R #1 did not have a DNR Order on file with Respondent on the date of R #1’s death. On or about July 24, 2019, at approximately 7:24 a.m., R #1 was found unresponsive in the resident’s room, with half of the resident’s body off the side of the bed with her legs on the ground and her head between the grab bar (removeable side rail) and the mattress, by Pelican Garden’s staff members “A,” “B,” “C,” and “D.” On or about July 24, 2019, Pelican Garden’s staff member “C” was instructed by staff member “A” to take R #1’s roommate to the bathroom and then leave the room with the roommate. On or about July 24, 2019, at approximately 7:24 a.m., Pelican Garden’s staff members “A,” “B,” and “D” worked to reposition R #1 to begin performing CPR and staff member “A” checked the resident’s pulse, observed the resident was pale and the resident’s skin was cold to the touch and made the determination that the resident had already passed. On or about July 24, 2019, Pelican Garden’s staff member “D” helped reposition R #1 and then left the room. On or about July 24, 2019, Pelican Garden’s staff member “D” was certified in CPR. On or about July 24, 2019, Pelican Garden’s staff members “A,” “B,” “C,” or “D” did not perform CPR on R #1. On or about July 24, 2019, at approximately 7:36 a.m., Pelican Garden’s staff member “A” dialed 911 at approximately 7:38 a.m. and, at approximately 7:39 a.m., stated it’s too late for CPR for R #1. On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s staff member “A” called Pelican Garden’s Administrator who instructed staff member “A” not to administer CPR to R #1. On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s Administrator had no firsthand knowledge of the condition of R #1. On or about July 24, 2019, at approximately 7:42 a.m., the Emergency Medical Services (“EMS”) arrived at Pelican Garden’s facility. On or about June 24, 2019, at approximately 7:45 a.m., the Emergency Medical Technician (“EMT”) pronounced R #1 as dead. Pelican Garden’s staff member “A” received a basic life support CPR and automated external defibrillator (“AED”) certification dated October 5, 2017, with an expiration date of October 2019. Pelican Garden’s staff member “A” was certified to perform CPR at the time of R #1’s death. Pelican Garden submitted a Plan of Correction dated January 22, 2020. Before, during, and after July 24, 2019, Pelican Garden’s policy to respond to an unresponsive resident without a DNR was to start CPR. Pelican Garden retrained staff on the response to an unresponsive resident without a DNR after the December 4, 2019, AHCA survey. On or about July 24, 2019, to December 4, 2019, Pelican Garden had more than one resident who did not have a DNR. Other Material Facts Established at the Hearing Dalia Portugal (“Portugal”) had worked at Pelican Garden for eight years. Marie Andre (“Andre”) is a home health aide. She has worked as a caregiver at ALFs for more than a decade. Mimose Francois (“Francois”) is also a home health aide. Francois had been a caregiver at another facility for 13 years. On July 24, 2019, when Portugal first arrived at work, there had been a shift change of staff at 7:00 a.m. This incident involved a 96-year-old resident at Pelican Gardens ALF. The resident, R #1, had moved into the facility at Pelican Garden in November 2018. The documents revealed that she suffered from a variety of ailments and diseases including: dementia, hypertension, high cholesterol, gastro reflux disease, was a fall risk, had macular degeneration, and was hard of hearing. Pet. Ex.14, at 14b. Shortly after her arrival, at approximately 7:22 a.m., Portugal took a call from R #1’s roommate. She advised her that R #1 was on the floor and she didn’t know how long she had been on the floor. At 7:24 a.m., Pelican Garden’s staff members Portugal, Andre, Francois, and Kerri Conklin arrived at R #1’s room and found her unresponsive. She was positioned with half of her body off the side of her bed. Her legs were on the ground and her head was positioned between the horizontal bedrail and the mattress. Together, Portugal, Andre, and Francois took hold of R #1 and worked to reposition her up on to her bed in an effort to begin performing CPR. Immediately after getting her on the bed the staff made several close observations of R #1. One staff member, Francois, testified that R #1 had no pulse, was pale, was not breathing, her face was smashed, and her body temperature was cold--“cold like ice.” Portugal made similar observations. She stated that R #1’s body temperature was cold--freezing cold--she had no pulse, was pale, not breathing, her nose was tilted to one side, and there was blood on the bed. The other staff member who responded, Andre, testified in a similar fashion. She added that R #1’s face was “smooshed.” After placing her on the bed, Andre said no CPR was conducted because “she was already dead.” When Portugal, Andre, and Francois repositioned R #1 on the bed in order to start CPR, they were unable to lay R #1 flat because her legs were stiff and stuck in the bed side kneeling position in which they found her. The photographs admitted as part of Respondent’s Exhibit A were insightful and provided compelling evidence that when the staff discovered R #1 she was already dead.2 The evidence was overwhelming and without serious dispute that R #1 was dead when she was discovered by the staff on the morning of July 24, 2019. During the course of the hearing the parties and witnesses frequently used the term “unresponsive” to describe R #1’s condition when she was discovered. However, the common understanding and plain meaning of this term in a medical emergency context implies an individual who may be in 2 The photographs also supported the testimony of the aides concerning the condition in which they found R #1. medical distress, but is revivable, i.e., one who does not respond to questions, touch, or neurological or sensory stimulation. Sadly, however, R #1’s cold, pale, lifeless, and stiff body was more than just “unresponsive” when she was first discovered by the staff. The facts, and reasonable inferences from the facts, established that she could not have been revived. She was lifeless and dead. Additionally, the reasonable inferences from the location where she was found, the medical problems she had, and the fact that she had been observed sleeping in bed during a 5:23 a.m. bed check indicate that she had gotten out of bed, attempted to walk somewhere in the room, had fallen near her bed, and severely injured her face during the fall. Resp. Ex. 14, at 14D. She had been dead on the floor long enough when the staff discovered her to cause her body to go cold and begin to stiffen. The clear and convincing evidence established that she was dead and unrevivable when she was discovered by the staff at 7:24 a.m. No amount of cardiopulmonary resuscitation would have revived or aided R #1. Such efforts would have been futile, pointless, and of no use. After the staff called 911 and the facility administrator, EMS arrived at Pelican Garden at approximately 7:42 a.m. Notably, even the EMTs did not attempt to perform CPR on R #1. Approximately three minutes after arriving, the EMTs pronounced R #1 dead. Law enforcement arrived shortly after the EMTs and conducted an investigation. The officers questioned Pelican Garden staff and took several photos of R #1 as she appeared after Pelican Garden staff repositioned her on her bed. The officers noted “a large amount of bloody purge” coming from R #1’s mouth on the right side of the bed, and a small amount of bloody purge on the pillows and the bed on the left side of R #1’s head. Resp. Ex. A at 8.3 After receiving Pelican Garden’s report detailing the circumstances surrounding the death of R #1, the Agency conducted its own survey of the facility on December 4, 2019. The AHCA surveyor spoke to Portugal and Conklin. The AHCA surveyor spoke with R #1’s physician and learned that R #1 had died of a heart attack. The surveyor also spoke with someone at the Medical Examiner’s Office and learned that no autopsy had been performed. The AHCA surveyor did not speak with the EMTs or the police officers that responded to Pelican Garden. The AHCA surveyor completed the investigation and cited Pelican Garden for violating R #1’s resident’s rights by failing to perform CPR when R #1 was found “unresponsive” since R #1 did not have a DNR in place. According to the AHCA surveyor, there are circumstances where it would be inappropriate or unnecessary to perform CPR on a resident who was found unresponsive. Specifically, when staff cannot get to the resident or position the resident for some reason. The surveyor also agreed with counsel that it “wouldn’t make sense” to perform CPR on a resident who, for example, was found decapitated. AHCA’s professional witness, Michelle Dillehay (“Dillehay”), is a nurse consultant employed by AHCA. She was questioned about the general obligation to perform CPR when an individual is found unresponsive and does not have a DNR in place. 3 The contents of the Sebastian police report and photographs are reliable, relevant, and supplement or explain other evidence. As a result, they were admitted and have been considered by the undersigned. See generally §§ 120.569(2)(g) and 120.57(1)(c), Fla. Stat. In her opinion, based on the application of recognized standards within the community, CPR must be initiated on an “unresponsive” individual except in limited circumstances not applicable to this case. She was not questioned, however, using hypothetical questions about the specific circumstances of this case. Likewise, the undersigned was unable to conclude that she was knowledgeable about R #1’s pre-existing medical problems or physical condition, or her appearance at the time of her discovery, or when she was photographed by the police on the bed. More to the point, there was no persuasive evidence that Dillehay had seen or reviewed the police report or pictures of R #1 taken by the Sebastian Police Department. Resp. Ex. A. In short, Dillehay gave a broad opinion without being specifically or thoroughly questioned or briefed about the unique circumstances of this case, or how that might affect her view of the actions taken by the Pelican Garden staff on July 24, 2019. The scope of her opinion was limited and not necessarily specific to the facts of this case. She opined that in those instances where a person does not have a DNR, they must be given CPR when found in an unresponsive state. She went so far as to state that CPR must be initiated even on a dead person. While her testimony was instructive in a very general sense and no doubt sincere, the undersigned affords little weight to it because a broad application of the CPR/DNR requirement explained by Dillehay cannot, or should not, be applied in all cases--especially when a person is discovered dead and in a stiffened, cold, and lifeless state with no pulse or respiration. Otherwise, such a requirement would be unreasonable and lead to absurd results. To the extent Dillehay’s opinion means or suggests that the Pelican Garden staff was required to initiate CPR on R #1 under the facts of this case, it is rejected as unsupported by a reasonable and correct interpretation of the law. Further, it is up to the undersigned to determine the weight and credibility given to an expert’s testimony. Behm v. Div. of Admin., State Dept. of Transp. 336 So. 2d 579 (Fla. 1976).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that due to the unique circumstances of this particular case the Agency dismiss the Administrative Complaint filed against Pelican Garden and find that no violation occurred. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. COPIES FURNISHED: Dwight Oneal Slater, Esquire Cohn Slater, P.A. 3689 Coolidge Court, Unit 3 Tallahassee, Florida 32311 Gisela Iglesias, Esquire Agency for Health Care Administration 525 Lake Mirror Drive North, Suite 330B St. Petersburg, Florida 33701 Richard J. Shoop, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Simone Marstiller, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Elizabeth Anne Hathaway DeMarco Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330C St. Petersburg, Florida 33701 Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Shena L. Grantham, Esquire Agency for Healthcare Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in this case is whether Respondent, Jerry Green, acted as a yacht and ship broker as defined in Section 326.022(1), Florida Statutes, without being licensed by Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, as alleged in a Notice to Show Cause entered September 3, 1996.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (hereinafter referred to as the “Division”), is an agency of the State of Florida. The Division is charged with the responsibility for carrying out the provisions of Chapter 326, Florida Statutes, the Florida Yacht and Ship Brokers’ Act (hereinafter referred to as the “Act”). Respondent is Jerry Green. Mr. Green is not licensed by the Division pursuant to the Act as a yacht and ship broker. At all times relevant to this proceeding, Mr. Green was employed at Rick’s on the River (hereinafter referred to as “Rick’s”), in Tampa, Florida. Mr. Green was compensated for his employment at Rick’s by being provided room and board. During 1996 the Division received an anonymous complaint including a copy of an advertisement from a October 13, 1995 edition of a publication known as the “West Florida Boat Trader”. The advertisement indicated it was from Rick’s and included several photographs of boats purportedly for sale at Rick’s. Among other boats listed on the advertisement was the following: 1975 42’POST Full Tuna Tower, Twin Turbo Charge Detroit 671 Out of Town Owner DESPARATE to Sell, $84,500 A similar advertisement was placed in the November 3, 1995 edition of the “West Florida Boat Trader”. Although Mr. Green denied at hearing that he had placed the advertisement, he admitted in his Response to Notice to Show Cause that “between October of 1995 and May of 1996 he advertised a 1975 42’ Post named the ‘Dunn Deal’ . . . .” He also admitted in the Response “that he advertised the 42’ Post at the request of the owner, Richard Dame, who is a personal friend, for the purpose of testing whether there was a market for such a boat and to determine the approximate value of the boat.” It is, therefore, concluded that Mr. Green was responsible for the advertisement. On May 31, 1996, James Courchaine, an investigator for the Division, went to Rick’s. After arriving at Rick’s, Mr. Courchaine met Mr. Green. Mr. Green identified himself as the “dockmaster”. Mr. Courchaine asked about the 42-foot Post and Mr. Green told him that he knew all about the Post and could talk to Mr. Courchaine about it. Mr. Green told Mr. Courchaine the Post belonged to a friend and that he, Mr. Green, could sell it. Mr. Green also indicated the Post was in Key West and that he wasn’t sure if the owner would be bringing it back. Mr. Green also told Mr. Courchaine that the owner was originally asking $84,500.00 for the Post but, that since it had been on the market so long without any interest, he might take between $79,000.00 and $81,000.00 for it. Mr. Courchaine asked Mr. Green whether the amount Mr. Green quoted included Mr. Green’s commission. Mr. Green told Mr. Courchaine that “he would be taken care of.” Mr. Green wasn’t employed as the dock master at Rick’s. Mr. Green lived on the premises and looked after the property, including boats located there. In return, he received room and meals. At the time of the formal hearing Mr. Green testified that he was not employed and that his only source of funds is Social Security. He also testified, however, that he still lives at Rick’s. The evidence failed to prove that Mr. Green has any source of funds other than Social Security. The evidence failed to prove that Mr. Green offered to sell any vessel regulated under the Act except as described in this Recommended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes ordering Jerry Green to cease and desists from acting as an unlicensed broker in violation of the Act and that he pay a civil penalty in the amount of $500.00 within thirty days of the date this matter becomes final.DONE and ORDERED this 28th day of April, 1997, in Tallahassee, Florida. LARRY J. SARTIN 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 28th day of April, 1997. COPIES FURNISHED: Suzanne V. Estrella Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Paul T. Marks, Esquire Post Office Box 4048 Tampa, Florida 33677 Lynda L. Goodgame General Counsel Department of Business & Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert H. Elizey, Jr., Director Department of Business & Professional Regulation Florida Land Sales, Condominium & Mobil Homes 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM 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 15th day of February, 2002.
The Issue The issue in this case is the appropriate penalty to impose on the Respondent for: proceeding on a job without obtaining the applicable local building department permits and inspections, in violation of section 489.129(1)(o), Florida Statutes1/; failing to notify a customer of the Florida Homeowners’ Construction Recovery Fund, in violation of section 489.1425; and failing to place his license number on a construction contract, in violation of section 489.119(5)(b).
Findings Of Fact The Petitioner is the state agency charged with the licensing and regulation of the construction industry pursuant to section 20.165 and chapters 455 and 489, Florida Statutes.2/ At all times material to these proceedings, the Respondent was licensed as a certified general contractor in the State of Florida, having been issued license CGC 12754. At all times material hereto, the Respondent was the primary qualifying agent of Charles Boyd Construction, Inc. (“Charles Boyd Construction”). The Respondent’s license is current and active. The Respondent has been subject to prior discipline. On September 21, 1988, the Construction Industry Licensing Board (CILB) issued a Final Order against the Respondent in case 78033 that imposed an administrative fine in the amount of $2,500 for violating sections 489.129(1)(j) and (m), 489.105(4), and 489.119, Florida Statutes, in 1983 and 1984. On or about December 3, 2012, Joanie Miller Drobnie entered into a contract with Respondent, d/b/a Charles Boyd Construction, for renovations to her residence located at 452 Banana River Boulevard, Cocoa Beach, Florida. The original contract price was $173,000. Charles Boyd Construction accepted $175,000. The additional funds represented amounts for extras on the job. On or about January 2, 2013, the Respondent, d/b/a Charles Boyd Construction, obtained Building Permit 13-0366 from the City of Cocoa Beach Building Department for the installation of new windows. Charles Boyd Construction proceeded on interior renovations and performed additional construction contracting services requiring proper licensure without obtaining applicable local building department permits and inspections. The contract at issue failed to contain a statement notifying Ms. Drobnie of her rights under the Florida Homeowner’s Construction Recovery Fund. The Respondent’s license number does not appear on the contract. The Petitioner and Respondent agree, based on the facts and circumstances in this case, that discipline should not exceed an administrative fine of $7,000, payment of the Petitioner’s costs of $487.93, and completion of a live, approved seven-hour continuing education course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Licensing Board enter a final order: finding that the Respondent violated section 489.129(1)(o) and, by failing to comply with sections 489.1425 and 489.119(5)(b), violated 489.129(1)(o); imposing an administrative fine of $7,000; assessing costs in the amount of $487.93; and requiring the Respondent to complete an approved, live seven-hour continuing education course in addition to any otherwise-required continuing education, with an emphasis on chapter 489 and the rules implementing it. DONE AND ENTERED this 2nd day of August, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 2nd day of August, 2016.
Conclusions The Director, Division of Hotels and Restaurants, Department of Business and Professional Regulation (the Division), after consideration of the complete record of this case on file with the Division, enters this Final Order. 1. on May 20, 2013, the Department issued an Administrative Complaint, a copy of which is attached as Exhibit win, 2. On October 1, 2013, a hearing in this cause was held before the Honorable Suzanne Van Wyk, Administrative Law Judge, Division of Administrative Hearings. 3. On December 11, 2013, the Honorable Suzanne Van Wyk issued a Recommended Order, a copy of which is attached as Exhibit "2". The Statement of the Issues, Preliminary Statement, Filed January 6, 2014 1:49 PM Division of Administrative Hearings Findings of Fact, Conclusions of Law, and Recommendation contained in the Recommended Order are hereby adopted in toto and incorporated herein by reference. Based upon the foregoing, and being otherwise fully advised in the premises it is, hereby ORDERED that: for Respondent's violations of Section 509, Florida Statutes, and/or the rules promulgated thereto the following penalty is imposed: 1. Respondent shall pay a fine in the amount of $1,200.00, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within thirty (30) calendar days of the date this Order is filed with the Agency Clerk. 2. This Final Order shall become effective on the date of filing with the Agency Clerk. DONE AND ORDERED this BF aay of Pece hi , 2075. Rie Oi fon Disnew 5. Werpglle Diann S. Wo¥zalla, Director Department of Business and Professional Regulation Division of Hotels and Restaurants 1940 North Monroe Street Tallahassee, Florida 32399-1015
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by Rules 9.110 and 9.190, Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Department of Business and Professional Regulation, Attn: Ronda L. Bryan, Agency Clerk, 1940 North Monroe Street, Suite 92, Tallahassee, Florida 32399-2202 and a second copy, accompanied by the filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida Appellate District where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Certified U.S. Mail to Holland Apartments, c/o Cindy Holland, 162 Rainbow Drive, Fort Walton Beach, Florida 32548; by regular U.S. Mail to the Honorable Suzanne Van _ Wyk, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060; and by hand delivery to Marc Drexler, Chief Attorney, Division of Hotels and Restaurants, Department of Business and Professional Regulations, 1940 North Monroe Street, Tallahassee, Florida 32399-2202, this CG day of Sanuary , 20\4_ Prtccln MN Nihbe For Putreln~M, Division of Hotels and Restaurants : “Certified: Article: Number, ; ; 7446 008 S111 5516 1783
The Issue Whether Petitioners have been subjected to an unlawful housing practice by Respondents, as alleged in the Housing Discrimination Complaint filed by Petitioners on March 13, 2004.
Findings Of Fact Petitioners, Ingrid Gomez and Luis Moran, are married. They and their son moved into Coral Gardens Apartments in early 2000. Petitioners entered into a one-year lease on January 13, 2000. The lease was not renewed at the end of one year, and Petitioners, thereafter, lived in their apartment as month-to- month tenants. Coral Gardens Apartments is a 36-unit apartment complex located in Naples, Florida. Many of the residents are minorities. Respondent DeMarco Investments is the absentee owner of the complex, which is managed through a Fort Myers company called Services-Taylor Made, Inc. Respondents Jim and Judy Hill were hired to manage the complex in March 2003. At some point in June 2003, Ms. Hill sent a notice to all tenants that stated as follows, set forth verbatim:1/ Now we have [sic] ask you to please make sure that when you give your children snacks, drinks, or what ever [sic] to eat that you the parent would make sure your children discard the trash inside the unit or in the dumpster. Apparently this went in one ear and out the other. Now all unit [sic] has to suffer this price because no one wants to help keep the trash up by disposing of it yourself [sic]. The adults are getting just as bad. So every unit is going to pay an additional $35.00 a month trash clean up fee. You want to live trashy MOVE across the street. So when you pay your July Rent pay an extra $35.00 to pay for the person that has to clean up YOUR trash. I sent out letters to everyone that it was $25.00 and if it didn't improve I would raise it. Well I didn't inforced [sic] the $25.00 and it hasn't changed at all. So it [sic] in effect for sure now [sic]. YOU WILL PAY $35.00 WITH JULY'S RENT. Now you don't want to pay it next month then start picking up the TRASH! Also from now on you put furniture out at the dumpster it will cost you $50.00 first piece and $15.00 per piece after that. They charge me to come and get the stuff then I charge you. The camera's [sic] will be watching and don't get caught. I hate to inform all of you we are not the old managers, the old owners, the old maintenance personal [sic]. We are new and we are the LAW here. We are working to improve this place and if you can't help with keeping this place clean then I DON"T [sic] want to here [sic]. I AM NOT GOING TO LIVE IN A TRASHY PLACE! After receiving this notice, Mr. Moran and Mr. Novarro went to the manager's office to discuss the propriety of the proposed $35.00 trash pick-up fee. Mr. Moran stated to Ms. Hill that he believed an imposition of such a fee on tenants was against the law. Mr. Moran testified that Ms. Hill stated, "I am the law." Mr. Moran demanded that Ms. Hill give him the phone number of Mr. DeMarco. He told her, "I want to talk to the owner of the circus, not the clowns." Mr. Moran testified that at this point, Ms. Hill became apoplectic. She called Mr. Moran "a fucking nigger Latino." Mr. Novarro, whose English was very sketchy, confirmed that Ms. Hill used those words. Ms. Gomez, who speaks relatively fluent English, testified that on another occasion Ms. Hill stated that she was "tired of the fucking negros Latinos." This raised a question whether Ms. Hill also used the term "negros" in her confrontation with Mr. Moran and whether it became "nigger" only in the imperfect translation. In any event, Ms. Hill's use of the word "fucking" was unambiguous and certainly indicated a racial animus against Mr. Moran, who is indeed a black Latino. In a second notice to all tenants dated June 22, 2003, Ms. Hill acknowledged tenant complaints about the $35.00 fee. She had "consulted the Florida Landlord/Tenant Act and state officials in Tallahassee," and concluded that she was required to rescind the $35.00 trash fee. Thus, the controversial fee was never collected. Dennis Gomez, Petitioners' middle-school-aged son, testified that Ms. Hill told him she would pay him $5.00 per week to pick up trash on the property. Mr. Moran told Dennis not to accept, because tenants paid Ms. Hill $10.00 per month to clean up the property. Dennis testified that after he refused the offer, Ms. Hill told him that he had to pick up the trash anyway because he "was a slave." When Dennis asked why he was a slave, Ms. Hill stated that Dennis' father was a "nigger and a slave," and that made Dennis a "slave, too." Dennis Gomez' testimony is not credible. There is undoubtedly a kernel of truth in his story, but Dennis' obvious embellishments of his conversations with Ms. Hill render his testimony of doubtful probative value. At some point in June 2003, Ms. Hill served Petitioners with a seven-day notice to vacate the premises, because of her confrontation with Mr. Moran. However, the notice was never enforced and the Petitioners stayed on until August 1, 2003, when they voluntarily terminated their tenancy. There was a problem with the return of Petitioners' deposit. Ms. Gomez contacted Mr. DeMarco, who returned the deposit to Petitioners after a two-month delay caused by cash flow problems with his businesses. Mr. DeMarco credibly testified that he knew nothing of the controversy between Petitioners and Ms. Hill until he received the Housing Discrimination Complaint. His only contact with Petitioners was the telephone conversation with Ms. Gomez in August 2003 concerning the Petitioners' deposit. From the weight of the testimony, it is apparent that there was a great deal of animosity between Petitioners and the Hills. The notices authored by Ms. Hill were crude and insulting, but were not directed toward Petitioners in particular. There is credible evidence that on at least one occasion Ms. Hill uttered a derogatory and insulting racial comment to Mr. Moran. However, the record evidence does not demonstrate that Ms. Hill took any action against Petitioners on the basis of their race or familial status. The $35.00 trash fee notice was provided to all tenants. The fee itself was never collected. Petitioners were given a seven-day notice, but it was never enforced. Petitioners chose to vacate their tenancy. No adverse action whatever was taken against Petitioners. DeMarco Investments was unaware of the hostile situation between Petitioners and the Hills. Mr. DeMarco's delay in returning Petitioners' deposit was due to legitimate business reasons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 8th day of September, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of September, 2004.
