The Issue The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule 10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule 10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996. Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in good condition, a septic tank contractor is supposed to sign an inspection slip. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment. Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence. When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number 96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations. Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford. Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner. DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 5th day of September, 1997. COPIES FURNISHED: Thomas D. Koch, Esquire Department of Health Building 6, Room 133 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry A. Ford 25295 CR 137 O'Brien, Florida 32071 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, based on an Administrative Complaint that alleges that ten Class III deficiencies have persisted despite notice of the deficiencies and of the requirement that they be corrected.
Findings Of Fact The Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, is licensed to operate Leisure Living Retirement Home, 401 S.E. 9th Avenue, Mulberry, Florida, as an adult congregate living facility (ACLF) under Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. On January 9, 1989, the day of an HRS survey of the Respondent's ACLF, the following Class III deficiencies, among others, were present: The facility did not have on its staff at all times at least one staff person with training in an approved first aid course, and there was no evidence that all staff were free of communicable disease. Daily records of supervised self- administered medications had not been kept for some residents since 1/3/89. Others showed the medications had been logged sporadically, while one medication, Inderol 10 mg, had never been logged. Because of this haphazard system, there was no way to be sure residents were receiving medications at the proper times and in the correct dosages. Of eight health assessments reviewed three did not indicate the residents to be free of communicable disease. One did not indicate whether the resident was capable of self-administering medications with supervision or assistance from staff. Appropriateness of admissions and continued residency was not based on the medical records. See subparagraph C, above. Medications were not given as prescribed. As the medications had not been logged or given according to the medication label, there is a potential for over- or under- medicating the residents, which could lead to serious health problems for the residents. All rooms where food or drink was prepared and served were not clean or in good repair as evidenced by: Live and dead cockroaches were observed on the kitchen and dining room floor and in the kitchen cabinets. There were spills inside the microwave oven. There was an accumulation of dust on top of the refrigerator and the freezer. The curtains in the dining room were torn. All potentially hazardous food was not held at safe temperatures. Liver had been left at room temperature to thaw. It could not be determined if the freezer was 0 degrees Fahrenheit or colder, as the thermometer had not been placed in the freezer until shortly before the surveyor exited the facility. The last annual inspection of the portable fire extinguisher in the main building was done December, 1987. Documentation of monthly fire drills and quality tests of smoke detectors and the fire alarm system was not available at time of survey. The facility needed to institute an effective insect control system. There were roaches crawling up the wall near the phone, creating an atmosphere ripe for the spread of disease. (These lettered subparagraphs correspond to the lettered subparagraphs in paragraph (3) of the Administrative Complaint in this case.) At the conclusions of the January 9, 1989, survey, the Respondent agreed to the following schedule for correcting each of the deficiencies listed in the subparagraphs of Finding 2, above (each lettered subparagraph below corresponds to the deficiency identified in the same lettered subparagraph of Finding 2, above): February 15, 1989 Immediate and ongoing. February 9, 1989. February 9, 1989. Immediate. January 20, 1989. January 9, 1989. January 16, 1989. February 9, 1989. Immediate. On April 27, 1989, HRS personnel returned to the Respondent's facility. They found that the deficiencies listed in the lettered subparagraphs of Finding 2, above, were not corrected, as the Respondent agreed to do. Instead, as to each deficiency, they found: Of the two staff, neither had first aid, and only one had a "no communicable disease" statement. Medications had not been logged since the morning of April 25, 1989. One of the three still did not indicate that the resident was free of communicable disease. See subparagraph C, above. One medication prescribed April 1, 1989, was never used, according to the logs. A live roach was seen crossing the kitchen counter. Breaded frozen fish was left on the counter. The stand-up freezer was 20 degrees Fahrenheit. The last documented quarterly smoke detector test was January 26, 1989, and the last documented fire drill was February 6, 1989. A live roach was seen on food left to defrost on the kitchen counter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Health and Rehabilitative Services, enter a final order finding the Respondent, Willie Mae Johnson, d/b/a Leisure Living Retirement Home, guilty as charged in the Administrative Complaint in this case and fining her $2500. RECOMMENDED this 31st day of May, 1990 in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 31st day of May, 1990.
Findings Of Fact Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.
The Issue Whether the Department of Insurance, Division of State Fire Marshal, should revoke Respondent's Firefighter Certificate because of Respondent's conviction of a felony.
Findings Of Fact Respondent is currently certified as a firefighter in the State of Florida by the Department of Insurance, Division of State Fire Marshal. Respondent was initially certified as a firefighter in the State of Florida while employed by the Palatka Fire Department. On or about January 12, 1991, Respondent resigned from the Palatka Fire Department and went to work for the Gainesville, Florida Fire Department. On August 29, 2000, Respondent was convicted by a jury of the felony of aggravated fleeing and attempting to elude in violation of Section 316.193(5), Florida Statutes. Adjudication was withheld. The conviction occurred in the Circuit Court of the Eighth Judicial Circuit in and for Bradford County, Florida. Respondent was placed on community control for two years, to be followed by probation for a period of three years.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Insurance Commissioner and Treasurer enter a Final Order revoking Respondent's Certificate as a Firefighter until such time as his probation is completed. DONE AND ENTERED this 18th day of April, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 18th day of April, 2001. COPIES FURNISHED: Walter Gwiazda Route 1, Box 163 Florahome, Florida 32140 William Fred Whitson, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue is whether Respondent is guilty of any or all of six alleged violations of the law governing lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a lodging establishment known as Salazar's at 412 South 2nd Street in Immokalee. Respondent holds license control number 21-01901H. Petitioner's inspector inspected the lodging establishment on April 10 and 30, 1997. On April 10, the inspector completed a report citing violations. The alleged violations were the presence of expired fire extinguishers, a missing floor drain in the men's restroom, a locked women's restroom, leaking shower faucets in the showers in the men's restroom, no hot water in the showers in the men's restroom, a broken toilet in the men's restroom, no backflow device for the hose threaded to the faucet in the men's room, a chirping smoke detector suggestive of dead batteries, no cold water in one of the stalls in the men's restroom, a torn screen in the men's restroom, a strong smell of urine in the men's restroom, no hot water in the wash basin outside the women's restroom, a dumpster on dirt, and peeling paint in the shower stalls in the men's restroom. The inspector characterized the report as a warning. She mailed the report to Mr. Christman, who is Respondent's manager, and she gave Respondent five days from receipt of the report to correct the violations. However, several items bore asterisks, and, according to the form, Respondent had to correct these violations immediately. These violations were for the fire extinguishers, smoke alarm, lack of hot and cold water, and odor of urine. On April 30, 1997, the inspector returned and reinspected the lodging. She found nine violations. The alleged violations were expired fire extinguishers, a missing floor drain in the men's restroom, a broken toilet in the men's restroom, no backflow device between the faucet and hose, no cold water in one stall of the men's restroom, a torn screen in the men's restroom, a locked women's restroom, a dumpster on the dirt, and peeling paint in the shower stalls in the men's restroom. The only urgent violations remaining from the last inspection were for the fire extinguishers and lack of cold water. On May 29, 1997, the inspector returned and performed a second reinspection. She found the same violations as found previously, except for those concerning the dumpster and peeling paint. The following day, Petitioner issued Respondent the Notice to Show Cause that commenced this case. Respondent failed to repair or replace the torn screen in the men's restroom within the allotted time after the first inspection. It is no defense that the screen is immediately redamaged. Respondent made the women's restroom reasonably available to guests of residents by giving the key to a resident who made it available to women as needed. Respondent failed to repair the cold water in the men's restroom within the allotted time after the first inspection. Respondent failed to replace the missing floor drain or repair the toilet within the allotted time after the first inspection. Respondent failed to install a backflow device between the hose and the faucet within the allotted time after the first inspection. However, Respondent did not understand what Petitioner was requiring, and Petitioner's inspection reports did not clarify this requirement. Respondent was not available during the correction period, and he later had some trouble trying to obtain help from Petitioner in explaining what he needed to do. Although a backflow device serves the important purpose of preventing contaminated water from backflowing up the hose and into the public water supply, the circumstances of this case do not permit a finding of a violation.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants, Department of Business and Professional Regulation, enter a final order imposing a fine of $1300 against Respondent. DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1998. COPIES FURNISHED: Scott R. Fransen Chief Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert J. Christman, Manager Salazar's 4799 State Road 29 South Punta Gorda, Florida 33935 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact FEC is the owner and developer of the project at issue in this proceeding, an industrial park to be located on 322.1 acres in Section 32, in the Town of Medley, in northwestern Dade County, Florida. Not at issue in this proceeding is the related but separate project planned by FEC for construction in Section 6, an unincorporated area of Dade County, lying immediately southwest of the property at issue. FEC proposes 5,193,570 gross feet of floor space for the project, to be constructed in six phases. Seventy-four percent of the floor area is to be completed or under construction within the first five years of the park's operation. Expected uses of the park, when completed, are expected to fall into four general categories: Distribution, comprising 792,516 square feet; wholesale trade, 2,509,018 square feet; manufacturing, 873,520 square feet; and offices and services of 1,017,515 square feet. There is no specification of what types of industries will be located in the project, or what types of chemicals or materials each may handle. FEC has applied for and received various approvals of the proposed industrial park. On June 6, 1983, the South Florida Regional Planning Council ("RPC") recommended approval of the FEC proposal, with conditions. On August 1, 1983, the town council of Medley adopted Resolution No. C-426, which approved and issued a development order for a development of regional impact for the project. Before the issuance of the Medley development order, Metropolitan Dade County adopted its own development order, Resolution No. Z-114-83, on June 23, 1983, approving the development proposed for Section 6 in the unincorporated area of the county. In September, 1983, DCA appealed the Medley development order. On October 3, 1983, the RPC voted not to appeal that order. The proposed project is located in an industrialized and largely unsewered area. The FEC property surrounds or abuts numerous out parcels within Section No. 32, which are served only by septic tank disposal systems, unlike the sewer system planned for the FEC development. The Northwest Wellfield is located about three miles to the southwest of the proposed FEC industrial park at its closest point to Section 32, and about four miles from the furtherest reach of the park. The wells of the Northwest Wellfield form a line about two miles west of the Florida Turnpike, and four miles southwest of Medley. The wellfield presently comprises 15 wells, each 42 inches in diameter, fully penetrating the Biscayne Aquifer to a depth of about 70 feet. The county has equipped each well with a two-speed pump capable of producing ten million gallons per day (MGD) at low speed, and about 15 MGD at high speed. Current maximum capacity of the wellfield is about 225 MGD. The county holds a valid consumptive use permit from the South Florida Water Management District authorizing an average pumpage of 50 MGD. The county has applied for a permit to increase the pumpage to 180 MGD. The county is presently pumping the wellfield at the rate of 140 MGD to offset the reduction in pumpage from the Hialeah and Miami Springs wellfields as a consequence of the discovery of contamination in those fields. The Hialeah and Miami Springs wellfields are currently pumping at a rate varying from three to ten MGD. The Northwest Wellfield, completed in 1983, at a cost to the public of $38,000,000, is located within the Biscayne Aquifer, which underlies all of southeastern Florida, including all of Dade County, from north of Boca Raton to the northwest area of Monroe County. The Biscayne Aquifer is a highly permeable, unconfined shallow aquifer composed of limestone and sandstone. The aquifer is a regional resource, serving as a sole source of potable water for the approximately 1.8 million residents of Dade County. Because of its cavernous nature, the aquifer has high vertical and horizontal permeabilities, permitting both rapid infiltration of rainfall as recharge to the aquifer, and rapid drainage through canals. Recharge to the aquifer is primarily from rainfall. In the latter part of the dry season, however, the main recharge to the aquifer results from infiltration from canals fed from water conservation areas. Net recharge from rainfall to the aquifer ranges from 8 to 20 inches per year. Because of wide fluctuations in annual rainfall amounts in South Florida, recharge from canals to the wellfield is important. The South Florida Water Management District operates an intricate system of canals, levees, control structures, and large water conservation areas for flood control, water conservation, and salinity control. These systems significantly affect water levels in the Biscayne Aquifer, including the area around the Northwest Wellfield. The levees impound fresh water and prevent overland sheet flow from the Everglades eastward through agricultural and urban areas. The complex system of interconnected canals provides necessary drains for the urban coastal areas in the wet season and transfers water from the conservation areas during the dry season to replenish water in the aquifer removed by various municipal and county wellfields. Water levels in the canals are controlled by opening or closing control structures during the wet season to prevent flooding in urban agricultural areas, and leaving the structures closed during the dry season to conserve fresh water and limit saltwater intrusion. Canal levels usually reach their seasonal lows in May. In the vicinity of the Northwest Wellfield, the system of levees and canals provides a substantial amount of recharge to the wellfield. The canal most significantly affecting water levels in the Northwest Wellfield is the Snapper Creek Canal, a borrow canal running immediately east of and parallel to the Turnpike, about two miles east of the wellfield. The Snapper Creek Canal borders the western line of the FEC property in Section No. 6 and lies about one mile west of Section No. 32. The terms "cone of influence" or "cone of depression" are terms applied to the area around a well from which the well draws water. Before a well commences pumping, ground water fills the pores and fractures in underground rock formations to a water level at which the fluid pressure of the ground water equals the atmospheric pressure exerted from above. Pumping the well reduces the fluid pressure of the ground water in the vicinity of the well, and results in a cone of depression or influence. Viewed from above, a drawing of a hydrologic cone of depression appears roughly circular, centered on the pumping well. A cross section of the cone would show an inverted shallow cone in the upper aquifer, whose lowest point coincides with the intersection of the cone where it enters the well. Pumping the well creates a down gradient for water below the area of the cone to flow toward the well. A "hydrologic cone of influence" is that point marking the outer bounds of the influence of a pumping well at a given point in time. A "regulatory cone of influence" arbitrarily fixes the location of the cone as a zone in which activity is regulated. The extent of a regulatory cone depends upon policy decisions taking into account the margin of safety deemed necessary for the protection of a well, regardless of the actual location of the hydrologic cone and technology available to protect ground water. The generally accepted value adapted by most regulatory agencies for the "regulated cone of influence" of a wellfield is the 0.25 foot draw-down line. This is so because it is also generally accepted that, with proper engineering practices and proper annual inspections, potential contaminants be generated and stored within this regulated cone of influence without inordinate risks of contamination to the underlying aquifer. The extent of a hydrologic cone of influence varies continuously, and is dependent upon the characteristics of the involved aquifer, such as its ability to transmit and to retain water, as well as the pattern and the amount of rainfall in the area, and the effect of nearby streams or canals. In addition, the rate of pumping of a well controls the extent of the cone of influence under any given set of aquifer conditions. Dade County regulates land uses in the area of the Northwest Well field according to whether property falls within the projected cone of influence of the field. In March, 1981, Dade County adopted an ordinance prohibiting the handling, use, transportation, disposal, storage, discharge, or the generation of hazardous materials in an area west of the Florida Turnpike, defined as being within 210 days travel time for a hypothetical particle of contamination to the Northwest Wellfield. That initial protective zone lay entirely to the west of the Turnpike, and included neither Section 6 nor Section 32. As a result of further study and computer modeling, the county subsequently adopted Ordinance No. 83-82 on September 20, 1983, amending the map of the cone of influence for the Northwest Wellfield, and adopting new regulations requiring the use of sewers instead of septic tanks in industrial areas. The amended map projected a cone of influence that greatly expanded the protective zone around the wellfield, and included both Section 6 and Section 32. The regulatory cone of influence selected by Dade County does not conform to the hydrological cone of influence, but excepts instead the area around the well depressed by 0.25 feet or more from the original unpumped surface. The county based its modeling of the regulatory line on an assumed pumpage of 150 MGD for the Northwest Wellfield, which is approximately equal to its present pumpage, and 75 MGD from the Miami Springs, Hialeah, and Preston wellfields, which is approximately ten times the current combined rate of pumpage for those fields. In addition, in running its computer model, the county conservatively assumed the highly unlikely condition for the aquifer--a 210-day period during which the aquifer would receive no recharge from rainfall. This "worst case" condition has never occurred during this century. In addition to this assumption, the county's computer modeling also ignored the substantial contraction of the cone during every wet season because of rainfall recharge, and omitted consideration of recharge to the wellfield from canal systems in the area. Within the line defined by its regulated cone of influence, Dade County currently bans all use, handling, generation, and transportation of hazardous materials. The cone of influence currently contained in the county's ordinances includes all of Section 32, including FEC's proposed project. Dade County Ordinance No. 83-82 is considered an interim regulation, intended to remain in force while Dade County continues to gather information concerning the aquifer in the vicinity of the Northwest Wellfield under pumping conditions. Since the enactment of the wellfield protection ordinance, Dade County has initiated a study to formulate a more detailed management plan for the wellfield. Dade County is conducting the study and generally implementing its environmental regulation and wellfield protection through its Department of Environmental Resources Management (DERM). DERM's powers extend into municipal areas, such as Medley, as well as throughout the unincorporated area of Dade County. The agency has a budget in excess of $5 million annually. Both within the municipalities and throughout the unincorporated areas of Dade County, DERM reviews building permit applications of all industries expected to potentially discharge chemicals into sewer systems. DERM requires all such industries to obtain an annual permit under Section 24-35.1 of the Dade County Code, and to install pretreatment facilities to ensure that no unsafe chemicals are discharged directly into sewers. In addition, DERM requires that all users or generators of hazardous materials throughout Dade County follow best management practices, including ground water monitoring, when appropriate. A special section of the agency focuses on the enforcement of hazardous materials regulation. In addition, Dade County has initiated a hazardous waste cleanup fund, a liquid waste transporter's permit ordinance, and regulation for underground storage facilities for hazardous materials. Further, Dade County has adopted Resolution No. R-114-84, which incorporates a non-exclusive list of numerous hazardous materials subject to regulation under the wellfield protection ordinance and other regulations. The more credible evidence of record in this cause establishes that even should Dade County remove the current ban on hazardous materials in Section 32, the proposed industrial park, as restricted by the Medley development order, would pose no significant threat of contamination to the Northwest Wellfield. As modeled under realistically conservative assumptions, including pumpage rated far exceeding the presently permitted legal rate of 50 MGD, the Northwest Wellfield hydrological cone of influence would reach into Section 32 for no more than one or two months per year, at the end of the dry season. For most of the year, the Snapper Creek Canal will act as a natural recharge boundary for the Northwest Wellfield. The canal would normally carry sufficient water northward from the Tamiami Canal to maintain a pressure head in the canal, driving water into the aquifer on both sides, replenishing the water drawn by the wellfield in the area west to the canal, and holding the cone of influence at the west side of the canal. On the east side of the canal, ground water would resume its natural flow to the southeast or east, unaffected by pumping in the Northwest Wellfield. During the dry season, the recharge mound in the Snapper Creek Canal would diminish, and the cone of influence could gradually expand, possibly recharging Section 32 for a month or two at the end of the dry season. As soon as the rainy season commenced again, however, the canal would fill up rapidly and resume its function as a recharge boundary. The more credible evidence establishes that it is highly unlikely that ground water contaminants originating from Section 32 would ever reach the Northwest Wellfield. Ground water moves only a few feet or even inches per day in the Biscayne Aquifer. Because Section 32 is located three to four miles from the Northwest Wellfield, the gradient to the wells in the cone of influence in Section 32 is extremely slack. In the driest of droughts, a hypothetical plume of contaminants beneath Section 32 would move only slightly towards the wellfield. At the return of the wet season, the gradient draining ground water from Section 32 eastward to the Miami Canal would be very steep and would rapidly flush any contaminants away from the wellfield and its cone of influence. The Medley development order imposes several restrictions on the development which protect the Northwest Wellfield from any threat of potential contamination from the proposed industrial park. The development order requires the removal of all exotic vegetation and the planting of native species to reduce the demand for water and the use of fertilizer, a potential contaminant; restricts irrigation in the project to the use of non-potable water from onsite lakes and wells; obligates FEC to construct, or provide $600,000 to the Dade County Fire Department for construction of, a fire station according to county specifications within the primary response district for Section 32, to improve the fire department's capability to respond quickly to any spill of hazardous materials; requires FEC to submit to the RPC, Dade County and Medley a detailed management operation plan within six months of the date of issuance of the development order; and further requires that FEC submit a hazardous material spill contingent fee and response plan to the RPC, Dade County, and Medley within one year of the date of the development order. The development order contains detailed criteria for the management/operation plan, including inspections, monitoring, and the use of best management practices designed to minimize the risk of contaminating ground water. Further, these requirements include approval of specific standards for hazardous materials accident prevention, mitigation, and response; adequate pre-treatment facilities to assure segregated retention of hazardous waste and their removal and disposal in accordance with local, state, and federal requirements; that all facilities be readily open for inspection by Medley and DERM; and appropriate storage and accurate labeling of hazardous materials. The order also requires that FEC receive review and approval of its plans by the RPC, Medley, and Dade County. The RPC will, if deemed appropriate, in the course of review, impose its customary policy of ground water monitoring for a project using or generating hazardous materials. The development order provides that whatever wellfield protection regulations Dade County might adopt after further monitoring of the Northwest Wellfield will apply to the FEC project in Section 32. The RPC compiled, and Medley adopted, in the development order, "Table 22" as a tool for determining the types of land uses that should be excluded from locating in the proposed industrial park. In the event Dade County were to remove the present ban on hazardous materials in Section 32, the Medley development order requires that every firm and industry listed in Table 22 desiring to locate in the development to apply to RPC, Dade County, and Medley for a waiver of restriction on hazardous materials, based upon the tenant's demonstration that its use of appropriate best management practices or other measures will adequately protect the environment. These applications would be reviewed on a case-by-case basis to determine the adequacy of proposed protected measures. This condition is imposed in the development order in addition to existing local, state, and federal permitting requirements. Further, Dade County also independently requires the use of best management practices, including monitoring when appropriate, by any industry using hazardous materials in Dade County. In summary, the evidence in this cause establishes that the current ban imposed by Dade County on the use, handling, generation, and transportation of hazardous materials in Section 32, when viewed in the context of the existing hydrological system in the area and the conditions imposed upon FEC in the Medley development order, combine to demonstrate the lack of a permanent ban on hazardous materials in Section 32 will pose no significant threat to the Northwest Wellfield. There is no evidence of record in this proceeding to demonstrate that the proposed project is in any way inconsistent with an existing state land development plan, any local land development regulation, or the regional planning council report.
The Issue Whether a proposed amendment to Florida Administrative Code Rule 69A-6.005(2) constitutes an invalid exercise of delegated legislative authority in violation of section 120.52(8)(e), Florida Statutes (2011).1/
Findings Of Fact Combs Oil is engaged in the distribution and storage of petroleum products in southwest Florida. The distribution and storage facility (facility) operated by Combs Oil, which is located at 76 Industrial Boulevard in Collier County, Florida, contains both underground and aboveground petroleum storage tanks and is considered a bulk petroleum storage facility. As a bulk petroleum storage facility, the operation does not directly dispense fuel to cars, boats, planes, and the like. Through its operations, Combs Oil distributes petroleum products to retail locations and to entities, such as governmental agencies, golf courses, and the commercial fishing, cattle, and citrus industries. Several years ago, Combs Oil purchased three 29,000- gallon aboveground, double-walled storage tanks and currently desires to utilize the tanks at its facility to store Class I petroleum products. These tanks are considered secondary containment-type tanks. Regulatory officials in Collier County have advised Combs Oil that the company will not be able to store petroleum in the 29,000 gallon aboveground tanks because to do so would be in violation of the 12,000-gallon capacity limit established by NFPA 30. NFPA 30, section 22.11.4.1 (2008), is included within NFPA Standard 1, as referenced in section 633.0215(2), Florida Statutes. NFPA 30, section 22.11.4.1 (2008), provides that where a secondary containment-type tank is used to provide spill control, the capacity of the tank shall not exceed 12,000 gallons. The 2008 version of NFPA 30 made no change to the existing prohibition against the use of secondary containment- type, aboveground tanks in excess of 12,000 gallons. Substantively, NFPA 30, section 22.11.4.1 (2008), is the same as the 2000 and 2003 versions; however, the 2008 version, according to Combs Oil, includes commentary from NFPA's technical committee that was not in previous versions of the rule. The commentary from NFPA's technical committee reads, in material part, as follows, Subsection 22.11.4 was initially added, in 1993, as an exception to the spill control provisions of NFPA 30. The exception addressed the growing use of factory-built aboveground tanks that incorporated some form of secondary containment. The secondary containment is primarily an environmental protection measure and usually takes the form of a double shell with an annular (interstitial) space or an integral spill pan. In developing this exception, the NFPA 30 Technical Committee on Tank Storage and Piping Systems considered many issues and determined that a double shell alone would not provide the level of spill control originally intended. First, the technical committee recognized that secondary containment and spill control are not synonymous. Secondary containment is a term that was originally applied to double shell underground tanks; such tanks have been in use for many years and are now the choice for underground installations, as a result of stricter environmental regulations. The outer shell contains any release of product if the inner primary tank develops a leak. The concept has now been applied to aboveground tanks. However, almost all product releases from aboveground tanks result from overfilling or a break in a pipe connected to the tank. Rarely does an aboveground tank release product because of a leak in its shell. In a sense, secondary containment, when applied to an aboveground tank, is a solution in search of a problem. Second, the technical committee was not convinced that the bare steel outer shell would not fail prematurely from an exposure fire. Their concern arose from the fact that the contained liquid is not in contact with the outer shell and, therefore, cannot absorb the thermal energy impinging on it. Third, for smaller tanks, the outer shell offered virtually no impact protection. Piercing the outer shell would likely result in piercing the primary tank as well. Even if the primary tank were not damaged, secondary containment would have been compromised. Nevertheless, the technical committee determined that an aboveground secondary containment-type tank could be installed without meeting the original spill control provisions of NFPA 30, if the protective features enumerated here are provided. The maximum capacity of 12,000 gal for Class 1 liquids and 20,000 gal for Class II and III liquids was chosen to correlate with the maximum capacities allowed by NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages, for aboveground tanks at service stations. Piping connections below the liquid level are not allowed and an anti-siphon device is required to prevent release of liquid should there be a break in the pipeline. The emphasized portion of the quoted material provides the basis for Petitioner's assertion that "NFPA has done no study to warrant the application of this standard to terminal or bulk facilities." Combs Oil did not offer any testimony from any person affiliated with NFPA's technical committee. Combs Oil did not call any witness who has served on NFPA's technical committee. Combs Oil did not offer any documentary evidence showing the workings of NFPA's technical committee as the committee contemplated the inclusion of the newly inserted notes into the technical committee's commentary. Per the requirements of section 633.0215, the Department, as part of its three-year update to the Florida Fire Prevention Code, seeks to amend rule 69A-6.005(2) to reflect the adoption of the 2008 version of NFPA 30. It is undisputed that NFPA 30 governs the facility operated by Combs Oil. It is also undisputed that NFPA 30A, when considered in isolation, does not apply to the facility at issue. Mr. Charles Frank works as an operations review specialist for the State Fire Marshall's Office, Bureau of Fire Prevention. In this capacity, Mr. Frank offers "informal interpretation for various agencies that are looking for code interpretations." Mr. Frank does not serve in a policy-making position with the State Fire Marshall's Office. From 2005 until 2009, Mr. Frank was a member of the NFPA. Mr. Frank is familiar with how NFPA develops and compiles its fire code, but he has personally never participated in NFPA's code development process. Mr. Frank is neither qualified, nor authorized to speak on behalf of NFPA with respect to technical matters related to NFPA's rules. Prior to filing the instant challenge, Combs Oil, pursuant to section 120.542, filed with the Department on or about August 3, 2007, a "Petition for Variance From, or Waiver of, Rule 69A-3[.]012(1), Florida Administrative Code [Waiver]." Petitioner's Waiver application requested that the Department waive the requirements of the applicable rule and allow Petitioner to install the three 29,000-gallon tanks. On or about November 2, 2007, the Department denied Petitioner's Waiver request. In response to the denial, Petitioner filed a Petition for Formal Administrative Hearing, which was assigned DOAH Case No. 08-1714. On July 8, 2008, pursuant to a Joint Motion to Dismiss, the Division of Administrative Hearings issued an Order closing its file and relinquishing jurisdiction to the Department.
Findings Of Fact The Respondent, Willia's Bahamas Home Care Center (Willia's), is an Assisted Living Facility (ALF) located at 125 W. Dixie Highway, Riviera Beach, Florida, with a standard license to operate an ALF for 24 residents. Petitioner, Agency for Health Care Administration (Agency), surveyed the facility on November 9, 1994 and cited deficiencies. A time frame was given to the facility for the correction of thirty deficiencies. As a result of the survey of November 9, 1994, the facility was issued a conditional license. On September 28, 1995, a fire inspector from the Riviera Beach Fire Department conducted an appraisal visit of the facility. Many deficiencies were cited and the facility was furnished with a letter dated September 29, 1995, listing the deficiencies and requesting that Willia's notify the Fire Department when the deficiencies were corrected so that the Fire Department could conduct a follow up inspection. During the September 28, 1995, visit, the fire inspector noticed that a lawn mower was in an inside room with a container of combustible liquid next to a gas water heater. This condition posed an immediate threat to the residents of the facility and the fire inspector had the facility move the lawn mower before he left the facility. The fire inspector also noted on the September 28 visit that the fire alarm system was not working. The fire alarm system had been out of service for some time and was not being monitored. There were no reports of testing or inspection of the fire alarm system. The lack of a working fire alarm system prevented immediate identification of a fire problem, the immediate alerting of the residents for escape, and the immediate notification to the fire department. On January 4, 1996, an employee of the Riviera Beach Fire Department, made a follow-up visit to Willia's. The fire alarm system was still non- functional and had been since July, 1995. The facility is a two-story building which does not have a sprinkler system. The lack of a functional fire alarm system posed a threat to the safety of the residents. On September 28, 1995, the Environmental Services' section of the Department of Health and Rehabilitative Services conducted an appraisal visit of the facility. Deficiencies were cited and the facility was furnished with an inspection report dated September 28, 1995, which listed the deficiencies. The following deficiencies were a threat to the health, safety, and welfare of the residents: 1) hot water at a temperature of 122 degrees Fahrenheit; 2) an extension cord that was too long which presented a trip hazard; and 3) protruding nails. On October 13, 1995, Environmental Services conducted a follow-up visit and found that the most serious of the deficiencies had been corrected. On September 28, 1995, the Agency conducted an appraisal visit of Willia's along with Nathan Wetiz, a member of the Ombudsman Council. Thirty one deficiencies were cited. Fifteen of these deficiencies had been previously cited during the November 9, 1994, visit by the Agency. The facility was given a statement of deficiencies along with a time frame for correcting the deficiencies. Some of the residents of the facility were entitled to receive personal funds from OSS/SSI. The records at the facility showed that the residents were being asked to sign for the funds two months before the funds were due to be disbursed. At the time of the September 28, 1995 appraisal visit both Mary Jane Battaglia, R.N. and Mr. Weitz found that residents' medications were being recorded in error. Medications were recorded as having been administered on the day after the survey. The records showed that residents were not being given their medications at the prescribed times. The nurse counted the medications of one resident and compared them with the medication record and found that there were medications which were not being given as prescribed. Such medications included Persantin which reduces blood clots and Verapamil which reduces the heart rate and prevents strokes. During the September 28 visit, Ms. Battaglia discovered that one resident was inappropriate for an ALF. This resident required the assistance of two people to help her stand. The resident was unable to propel herself in a wheel chair and had diminished vision. She had to be given her medications, which were being administered by unlicensed staff. The resident needed 24-hour nursing supervision. During the visit, Mrs. Mackey was observed being verbally abusive to the resident, telling her to shut up and calling her stupid. In addition to the deficiencies discussed in the preceding paragraphs, the following deficiencies were also cited. The weight records of the residents were being filled in without weighing the residents, thereby threatening the residents's health since there would be no way to track whether the residents were actually losing weight. One resident was being restrained by 3/4 bedside rails without a physician's order. Activities were not being provided for the residents. There was no documentation that the nutritional needs of the residents were being met. Menus were not being reviewed by a licensed dietitian. The posted menus were not being followed and the meals were not served on time. Two screw-in fuses were missing in the day room, which could lead to residents being shocked. On October 10, 1995, the Agency advised the facility that it was being placed under a moratorium. At that time Willia's had a census of nine residents. By letter dated October 17, 1995, the Agency gave written notification to the facility of the moratorium. A follow-up visit was conducted on November 29, 1995 by Joe Narkier and Nathan Weitz. Twenty deficiencies were cited including nineteen uncorrected deficiencies and a violation of the moratorium imposed on October 10, 1995. Eleven of these deficiencies were deficiencies which had been cited during the November 9, 1994 survey. At the time of the November 29 revisit, the following conditions still threatened the health, safety, and welfare of the residents. The fire alarm system still was not working. There was an inappropriate resident in the facility, who needed care beyond that which the facility was licensed or staffed to provide. Medication records were inaccurate. Semi-annual weights were still not being recorded for all residents. Menus were not being followed and meals were not being served on time. Another follow-up visit was conducted on January 10, 1996. The deficiencies which were noted in the November 29 visit had not been corrected. Administrative Complaint number 9-95-639 ACLF was issued against Willia's, fining the facility $2,400 as a result of twelve deficiencies which were found at the November 9, 1994 survey which were repeat violations found during the September 28, 1995 appraisal visit. No hearing was requested by the facility. A Final Order was issued by the Agency on December 1, 1995, imposing the fine against Willia's for the repeat deficiencies alleged in the administrative complaint. At the final hearing Mrs. Mackey, the administrator of Willia's stated that she was going to voluntarily surrender her license to the Agency. She tendered the license to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the imposition of the moratorium. DONE AND ENTERED this 15th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 15th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5676 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact: Paragraphs 1-9: Accepted in substance. Paragraph 10: Accepted to the extent that the resident were signing for funds before the funds were due to be disbursed. Rejected that the residents were not receiving funds as hearsay. Paragraphs 11-12: Accepted in substance. Paragraph 13: The tenth sentence is rejected as hearsay. The remainder is accepted in substance. Paragraph 14: Accepted in substance. Paragraph 15: The eighth sentence is rejected as hearsay. The tenth sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraph 19: Accepted in substance to the extent that Mrs. Mackey intended to voluntarily surrender the license for the facility. Respondent's Proposed Findings of Fact: The Respondent did not file proposed findings of fact. COPIES FURNISHED: Linda L. Parkinson Senior Attorney Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801-1976 Willia Mae Mackey Owner/Administrator Willa's Bahamas Home Care Center 125 Old Dixie Highway Riviera Beach, Florida 33404 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
