The Issue The issues presented concern the attempt on the part of the State of Florida, Department of Natural Resources (DNR) to impose a fine against Ron Harrod (Respondent) for willfully or knowingly damaging or removing products from sovereign lands without the consent of DNR or the State of Florida, Board of Trustees of Internal Improvement Trust Fund. The products spoken to is timber allegedly cut and removed from state-owned lands on November 20, 1985, and April 1, 1986. This purported conduct on the part of the Respondent is said to have violated Section 253.04(2), Florida Statutes (1985), and Rule 16Q- 14.03(2) and (6), Florida Administrative Code.
Findings Of Fact On September 1, 1985, Blanche Farrow made an agreement with the Respondent which allowed the Respondent as the owner of "Rons Cypress" to cut all the timber on her property. Rons Cypress is a business for cutting cypress slabs. This property is described in the agreement as being located on Highway 48 approximately 1 mile east of Floral City, on both the north and south sides of the road. Further it was stated that the timber contemplated in this arrangement could be found along Daniels Drive. A copy of the statement of agreement between Farrow and the Respondent may be found as Respondent's Exhibit 1 admitted into evidence. The exact nature of the Farrow property which is the subject of the agreement with the Respondent may be found in a copy of the Warranty Deed pertaining to this property, which has been admitted as DNR Exhibit 4. This property is located in Citrus County, Florida. The extent of the property over which Blanche Farrow and her husband, Chester B. Farrow, hold ownership does not extend into Lake Tsala Apopka, Lake Bradley and Little Lake, lakes adjacent to their property. These lakes constitute part of an historically meandered lake system and are subject to the sovereign rights of the State of Florida. In effect, the State of Florida owns those water bodies. The limitations of the boundaries of the Farrow property are made clear in the Warranty Deed in which certain language describes the boundaries of the property owned by the Farrows as being ". . . to the waters of Lake Tsala Apopka; thence Southerly along the water's edge of said Lake Tsala Apopka . . ." and ". . . to the water's edge of Lake Bradley . . ." Therefore, notwithstanding Respondent's protestations to the contrary and any statement made by Chester B. or Blanche Farrow, the legal description of the property does not convey title to those individuals for the several lakes described, nor create any leasehold interest on the part of the Farrows to the lakes. In pursuit of the agreement with the Farrows, Respondent made arrangements with Jerry Lovett, who is in the lumber business, to cut trees, principally cypress trees. Through this agreement, Lovett would write checks to Blanche Farrow which would be given to her by the Respondent. The Respondent in turn would be able to take the stumps left over from the cutting of cypress trees and use them for slabs in his business of selling cypress tree products. Respondent was to pay Ms. Farrow for the stumps from which he cut slabs. Respondent also took cypress knees in this area for use in his business. Respondent's Composite Exhibit 3 describes payment made by Jerry Lovett to Blanche Farrow for trees removed. On October 14, 1985, $600.00 was paid for cypress trees. On October 28, 1985, $1,275.72 was paid, of which 52.31 tons of cypress at $6.00 a ton was included in that purchase. On November 4, 1985, $551.28 was paid for cypress trees. On November 15, 1985, he paid $131.92 for removal of cypress trees. In this endeavor, Lovett in the person of his work crew had cut and removed cypress trees which belonged to the State of Florida. Respondent cut and removed slabs from the stumps left following Lovett's lumbering operation and took cypress knees as well belonging to the state. Respondent's involvement with the stumps and knees was through activities of a crew working for the Respondent. Neither the Farrows, Lovett nor Respondent had permission to take cypress products from this land belonging to the State of Florida. Lovett, in his activities, had operated under the misapprehension that the Farrows owned the disputed cypress trees that were cut from lands of the sovereign. He was led to believe in his discussions with Blanche Farrow that Respondent would point out the places where the cut could be made. Lovett also understood from his conversation with Ms. Farrow that certain monuments identifying the extent of her ownership could be found on the side of the road near Lakes Tsala Apopka and Bradley, described as cement corners. Lovett never located those monuments in that as he understood the outer bounds of the Farrow ownership, as Ms. Farrow described them, he would not approach those outer limits in his activities. Respondent likewise believed that the Farrows owned the property where the cypress cutting was being done. Nevertheless, Lovett cut and removed cypress trees in Lake Tsala Apopka, Lake Bradley and Little Lake and Respondent took stumps and knees from those lakes owned by the sovereign. Lovett sold the cypress logs which he removed from the area in dispute, to include cypress logs belonging to the State of Florida. Lovett removed less than 300 trees from the site and left some cypress logs at the site. Lovett through his crew was operating at the site of the dispute sometime approximately a week before October 14, 1985, through November 15, 1985. Lovett ceased his activities in the cutting of cypress when instructed to do so by the Respondent who mentioned something to the effect that the local zoning board said that this cutting had to cease. In the course of his operations in the three lakes, Respondent took 693 knees and between 800 and 1,200 cypress slabs. DNR became aware of the activities of Lovett and the Respondent based upon an investigation that was prompted by observations which Linda Sanford made. Linda Sanford is a zoning inspector for Citrus County. She also lives adjacent to Lake Bradley. As she describes it in her testimony, she observed work crews in the water cutting cypress "off and on." Among the people that she identified as being a member of the work crew was a James Gunn, who is an employee of the Respondent. The first time she saw the Respondent's crew was on November 13, 1985, around Daniels Road and Highway 48. Three persons were in the water and a chain saw was being operated. On November 16, 1985, while at home, Ms. Sanford received complaints from some neighbors about saws being operated and observed Respondent's crew again. One other time on a date that Ms. Sanford does not remember, which would have been following the first two occasions of her observations, Ms. Sanford asked the work crew if they had permits for the activities. Ms. Sanford never saw the Respondent's work crew remove any of the cypress materials. On November 20, 1985, Lieutenant Louis Feulner, then a Sergeant for the Florida Marine Patrol, went to the area where cypress trees had been cut by Lovett and cuttings from stumps and cypress knees were being taken by Respondent's work crew. This area was described by Feulner as the Lake Tsala Apopka chain. A copy of his report of the incident may be found as DNR Exhibit 7 admitted into evidence. Feulner was sent to investigate by his superior, Major Brown of the Florida Marine Patrol. Feulner arrived at the scene of the cutting activity around 3:30 in the afternoon and saw three subjects in the water. Those persons were James Gunn and Respondent's two sons. Feulner saw that cypress trees had been cut down on the site and some were located in the water. He observed stumps in the water as well. These observations were made of cypress products in knee- deep water. Feulner saw a chain saw being operated by the crew. The cutting that was being done was a slab from a stump. He did not see trees being removed from the site of the cutting. Upon inquiry, Gunn told Feulner that he worked for the Respondent and that the Respondent had gotten permission to cut the cypress trees from Ms. Farrow. Feulner advised Gunn that the activities involved in the cutting violated state law. In fact those activities did involve cutting of property belonging to the State. Major Brown had dispatched Lieutenant Fuelner to the questioned site on November 20, 1985, based upon a request of Gordon Roberts, Assistant Chief of Aquatic Lands for NR. At that time, Roberts was employed in a Division of State Lands, as an administrative assistant involved with investigations and enforcement. He held that position until May 1, 1987. On December 4, 1985, Roberts went to the site and observed that cypress harvesting had taken place in wetlands, in a submerged area. The area he observed was one involving buttress cypress trees. Roberts observed that harvesting was being done in an area below a line which represents the minimum flood plan line, a control line for what is described as the water management division. In conversation which Roberts had with the Respondent following the Feulner visit to the site, Roberts explained to the Respondent that there was some question about whether the cutting was on privately owned land or submerged land belonging to the State. He further advised the Respondent not to cut anymore in that area until a determination could be made about ownership of the property. Roberts wrote to the Respondent on December 13, 1985. A copy of this correspondence may be found as DNR Exhibit 1 admitted into evidence. Respondent says he did not receive this correspondence Nonetheless it was sent to the address utilized in noticing of the Respondent of the final hearing in this cause, as attended by the Respondent. The letter mentions concerns of the State on the subject of the belief held by the State that cutting was being done on its property. It went on to say that a survey was going to be conducted to decide where the line of demarcation between the upland owners property and that of the State would occur. The letter states that DNR preferred to have the matter settled amicably but indicated that trees should not be cut where buttressed cypress were found nor any other trees below the ordinary high water line of the lakes in question. It warned Respondent that a fine of $10,000 could be imposed under the provisions of Rule 16Q-14, Florida Administrative Code, for unauthorized removal of the trees and that the fine could be mitigated. Further it was stated voluntary cessation of the tree cutting would be a consideration on the amount of the fine. Finally, the letter stated that the Respondent could contact the State concerning these issues. By activities of Louis Neuman, Senior Forester for DNR, an attempt was made to ascertain the value of cypress trees which were cut in the areas in dispute. Mr. Neuman is qualified to assess the value of the trees cut. A description of his evaluation may be found in DNR Exhibits 12A-C representing the assessment made in Little Lake, Lake Bradley, and Lake Tsala Apopka. This involves a survey of December 18-20, 1985, as made by Mr. Neuman. He found that value involved in the cutting to be $440, $1,364 and $2,948, respectively, for Little Lake, Lake Bradley and Lake Tsala Apopka. These findings were related to Gordon Roberts in a memorandum of February 25, 1986, a copy of which may be found as DNR Exhibit 2 admitted into evidence. His assumption was that 78 trees, 306 trees and 815 trees had been cut within Little Lake, Lake Bradley and Lake Tsala Apopka, respectively. The total amount for cut cypress trees in all three lakes was $4,752, per Mr. Neuman's observations. Comparing his observations to those of the Respondent and Lovett, there is a disparity in valuation; however, it suffices to say that a substantial dollar amount of product was destroyed and removed from sovereign waters. This was an arrangement in which the Respondent was a knowing participant, who profited from the endeavor. In spite of the conciliatory tone of the letter of December 13, 1985, from Roberts to the Respondent, on March 26, 1986, a notice of violation or administrative complaint was brought against the Respondent concerning the observations made on December 4, 1985 and in view of the $4,752 statement of damages on the part of Mr. Neuman. The State sought to collect that amount of money and $2,000 punitive damages. A copy of the March 26, 1986 complaint letter may be found as DNR Exhibit 3 admitted into evidence. That complaint or notice of violation was subsumed in action of July 2, 1986, which forms the basis of the present dispute and for which the Respondent sought timely hearing. In the present complaint, allegations are made concerning observations of November 20, 1985, and the assessment of an administrative fine of $6,752 for what is described as a first offense. There is set forth in the notice of violation a second count or claim of violation pertaining to events of April 1, 1986, in which Respondent is stated to have willfully and knowingly removed products from the same area in which sovereign lands are said to have been involved. For this alleged second offense, DNR sought the imposition of an additional $10,000 fine. The accusations concerning a second offense arise from an investigation performed by Robert Verlato, an officer with the Florida Marine Control, which was conducted on April 1, 1986. He went to the Bradley Lake site where the cutting had been done in the past and observed three individuals at work. These were members of the Respondent's crew, including James Gunn and Respondent's two sons. He saw them operating a chain saw cutting the base of the stump which was approximately two feet in length. Gunn was operating the saw. Verlato told the individuals to stop work and they did. He arrested them for trespassing and removing state property. Respondent then arrived at the scene and indicated that he should be charged if there were any violations, and that the three men were members of his crew under his supervision and control. Verlato also observed other freshly cut stumps than the one which he had seen crew members working on, which stumps were in the same general area. He collected ten of the these fresh-cut stumps and took them as evidence for the criminal court case. Respondent indicates that the activities of April 1, 1986, had to do with the cleanup of this site requested by Ms. Farrow and not for purpose of further removal of cypress products for Respondent's benefit. The facts lead to the conclusion that while the Respondent may have had in mind accommodating Ms. Farrow, he also was accommodating his financial interests as well. This conclusion is supported by Respondent's Exhibit 2 admitted into evidence which was a letter from Ms. Farrow to Respondent on May 19, 1986, after the April 1, 1986, incident in which she asked the Respondent to observe the state's suggestions that no further cutting and hauling be done related to the cypress trees in question. Composite Exhibit 5A-D constitutes photographs of the site related to Lake Tsala Apopka showing where trees have been removed. DNR Common Exhibits 6 and 14 is an aerial photograph which marks the places where the subject cypress trees have been cut in the three lakes. They are shown in red marking. The findings about cutting that was done in Tsala Apopka Lake are not conclusive because the ordinary high water line for Lake Tsala Apopka was not established. This circumstance is discussed in the following paragraph. DNR commissioned an ordinary high water line study to be performed by Douglas A. Thompson, Professional Land Surveyor, registered in the State of Florida, and other states. He is the Assistant Chief of the Bureau of Survey and Mapping for DNR. Other members of his team included Kenneth M. Campbell, Bureau of Geology, and geologist for DNR; Catherine M. Gilbert, Bureau of Aquatic Plants, and botanist for DNR; and Louis A. Neuman of the Bureau of Mine Reclamation, forester. The details of this study are set forth in DNR Exhibit 11 admitted into evidence which is a copy of the ordinary high water lines survey of Bradley Lake and Little Lake. This study established the ordinary high water line elevation for Bradley Lake at 42.75 feet and for Little Lake at 41.75 feet. Areas where cypress trees were observed to have been cut in the operations of Lovett and the Respondent showed that in Little Lake the maximum elevation for those cuttings was 40.3 feet and at Lake Bradley the maximum elevation was at 41.4 feet. Both of these measurements are below the ordinary high water line elevation for those two water bodies. This confirms that Lovett and the Respondent were destroying and taking products belonging to the State which were below the ordinary high water line and within the boundaries of the sovereign's ownership. Due to the special nature of Lake Tsala Apopka, DNR was unable to establish with exactitude the high ordinary high water line for Lake Tsala Apopka. They were able to approximate that line at 42.75 feet in a setting where the maximum elevation of cuttings of cypress within that lake were found at 41.2 feet.
The Issue Whether Respondent engaged in the misconduct alleged in the charging document; and, if yes, whether such offenses are violations of Pinellas County School Board Policy 8.25 and the Code of Professional Conduct and/or constitute "just cause" for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Petitioner, the Pinellas County School Board, operates the public schools in Pinellas County, Florida. Respondent has been a teacher for 25 years. The last 18 years, he has worked as a music teacher in the Pinellas County schools. From 1986 to 1993, Respondent taught music at Dixie Hollins High School. From about August 1993 until about April 28, 2004, Respondent worked as a music teacher at Southern Oak Elementary School (Southern Oak). Respondent transferred to Southern Oak because his two sons were attending school there. At all times relevant to this proceeding, Respondent taught music to students in kindergarten through fifth grade at Southern Oak. The classroom teachers brought their classes to the music room where Respondent taught music and returned to pick up the students at or near the time the music class was over. The music room at Southern Oak was a large room, which included the open area where the students sat during their music class. In addition to the area where Respondent taught the various classes, the music room also included an office, a practice room, and three storage rooms. The music room had several large windows facing outside. As part of the music classes, Respondent worked with the children on rhythm movement, singing, playing instruments, and active listening, where the children were asked to keep the beat of the music that was playing on either the television or compact disc player. In the 2003-2004 school year, Respondent used a music curriculum that was about two years old. This music curriculum included a variety of videos and lessons. As part of his teaching and implementation of this curriculum, Respondent showed these curriculum-related videos to the students in his music classes. During the 2003-2004 school year, C.L., St.H., and Sa.H. were students at Southern Oak. C.L. was seven years old in second grade. St.H. and Sa.H., who are sisters, were about seven years old and in first grade. Like all other students at Southern Oak, C.L., St.H., and Sa.H. went to Respondent for music. C.L., St.H., and Sa.H. were all in different classes and, therefore, they did not attend music class during the same class period. Rather, they went to music with their respective classes at the time scheduled. At all times relevant to this proceeding, C.L. did not know either St.H. or Sa.H. Also, at all times relevant to this proceeding, neither St.H. nor Sa.H. knew C.L. Situation Related to C.L. On December 1, 2003, while C.L. was in the tub, her mother, Ms. L., picked up C.L.'s panties from the floor and noticed that there was blood in the panties. Ms. L. asked C.L. questions about the blood, but C.L. could not say when the bleeding had started. The following day, Ms. L. took C.L. to see Jeanette Moss, M.D. She also took two pairs of C.L.'s panties to the doctor's office to show the doctor. Because Ms. L. first discovered the blood in C.L.'s panties on December 1, 2003, she did not know and, thus, could not state with absolute certainty when this episode of bleeding began. However, Dr. Moss' medical report for that office visit indicated that C.L. was brought in by her mother because of suspected vaginal bleeding for the last five days. Dr. Moss did not conduct a vaginal examination, but looked in C.L.'s vaginal area to see if there was still bleeding and determined that there was not. Dr. Moss inquired about the possibility of sexual abuse, but Ms. L. did not think this was possible because she believed that C.L. was always properly supervised. After December 1, 2003, Ms. L. became aware that C.L. had two more episodes of bleeding, one in early January 2004 and one in late January or early February 2004. Following the early January 2004 episode, Ms. L. took C.L. to a medical office, where a nurse, Rene Nolan, looked at C.L.'s vaginal area, but did not conduct a vaginal examination. At the time of this visit, there was no bleeding. Nurse Nolan asked Ms. L. about the possibility of sexual abuse. Still, Ms. L. did not believe this was possible. Following the episode of bleeding in late January or early February 2004, C.L. was referred to Dr. Diamond, an endocrinologist. Dr. Diamond saw C.L. in April 2004 and reported to Ms. L. that there was no indication that the bleeding was related to puberty. With Ms. L.'s permission and in her presence, Dr. Diamond looked at C.L.'s vaginal area and, based on that observation, reported to Ms. L. that the vaginal opening "was not right for a seven-year-old" and indicated he believed there was some kind of sexual abuse. He told the mother to call the Child Protective Team (Child Protective Team or CPT) and have a full examination done. Ms. L. contacted the Child Protective Team the day after she and C.L. went to Dr. Diamond's office, but was told that a police report had to be filed before an examination could be performed. Since C.L. had denied that anything inappropriate had happened, Ms. L. was reluctant to file a police report. Ms. L. contacted Nurse Nolan and shared her concerns about filing a police report. She also updated Nurse Nolan about what had been happening with C.L. since the January 2004 office visit. Nurse Nolan then referred Ms. L. to Dr. Cheek, a physician who had previously worked with the Child Protective Team. On or about April 16, 2004, C.L. was examined by Dr. Cheek. After examining C.L., Dr. Cheek told Ms. L. that she was able to see C.L.'s hymen and determined that there was missing tissue, and there was also scar tissue. Dr. Cheek told Ms. L. that she suspected some type of abuse and reported her suspicion to the child abuse authorities. On or about April 20, 2004, a nurse practitioner with the Child Protective Team conducted a full examination of C.L. That examination, like the one performed by Dr. Cheek, showed loss of hymenal tissue and scarring. The medical record, completed by the nurse practitioner, stated that the loss of hymenal tissue with scarring observed during the examination "is consistent with penetrating trauma." Notwithstanding C.L.'s repeated denials that any sexual abuse had taken place, the nurse practitioner told Ms. L. that based on the findings of the examination, she believed that C.L. had been sexually abused. After C.L. was examined by the nurse practitioner with the Child Protective Team, C.L. and her mother met with a counselor at the CPT office. The counselor told C.L. that if someone had touched her, she should tell her mother and the counselor. C.L. did not verbally respond, but became visibly upset. The counselor then left the room, afterwhich, Ms. L. reiterated that C.L. should tell if someone had touched her and made her feel uncomfortable. After the counselor left the room and in response to her mother's question, C.L. stated that the only person who touched her was her music teacher. C.L.'s mother then asked, "Your music teacher?" C.L. then replied, "You know, the one I said was creepy." In describing how her music teacher touched her, C.L. said only that he would hold her on his lap real tight. C.L. then began crying. About that time, the counselor returned to the room, and Ms. L. told her what C.L. had just revealed to her. In making the comment, "You know, the one I said was creepy," referred to in paragraph 21, C.L. was referring to an earlier conversation she had with her mother about the music teacher. In or about November 2003, when C.L. came home from school, she told her mother that the music teacher was "creepy." Ms. L. then asked C.L. what did she mean. In response, C.L. told her mother, "He makes me sit on his lap." At or near the time C.L. made the statements to her mother noted in paragraph 22, C.L.'s parents discussed what C.L. told her mother. At that time, the parents did not suspect sexual abuse. So after discussing the matter, C.L.'s parents decided they did not want to get an innocent person in trouble, but if it happened again, they would "address it." After Ms. L. told the counselor what C.L. had said while the counselor was out of the room, the counselor asked Ms. L. what she knew about the music teacher. Ms. L. told the counselor about an incident that occurred at or near the beginning of school when she attended that school's open house. According to Ms. L., when she visited the music teacher's room during the open house, he flirted with her. However, there is no indication of exactly what the music teacher did to lead Ms. L. to that conclusion. It is unclear whether C.L. was in the room or had left the room when her mother told the counselor about the "flirting" incident. After Ms. L. told the counselor that C.L. had said the music teacher held her on his lap, the counselor asked C.L. if that was all that he had done and did it make her feel uncomfortable. C.L. answered, "Yes," and said that the music teacher had just held her tight and would not let her get up. After leaving the Child Protective Team office, Ms. L. went to a fast food restaurant before taking C.L. back to school. While at the drive-thru window, Ms. L. noticed that C.L. was clutching a stuffed animal and was crying. Ms. L. asked C.L. what was wrong. C.L. told her mother that she needed to tell her what had happened. After Ms. L. pulled over in the parking lot, C.L. told her mother, "It was him." Ms. L. asked C.L., "Who is him?" C.L. answered, "My music teacher." In response to her mother's asking what was her music teacher's name, C.L. said, "Mr. Fronczak." Immediately after C.L. made the revelations described in paragraph 27, Ms. L. went home and called her husband. Mr. and Mrs. L. then called the Pinellas County Sheriff's Office. Subsequently, C.L. revealed additional details concerning the number of times and how Respondent touched her. During the 2003-2004 school year when C.L. was a second grade student at Southern Oak, her class went to Respondent for music once a week. Each music period class lasted about 30 to 45 minutes. Every other week, Respondent showed the students a curriculum-related video, which would be played on the television which was located at the front of the classroom. The students in C.L.'s class would always sit on the floor to watch the videos. Whenever Respondent showed a video to C.L.'s class, the lights in the classroom were turned off, and the vertical blinds at the windows were closed. While the video was showing, Respondent sat in a chair in the back of the room, with the students seated in front of him, a few feet away. The students were facing the television and had their backs to him. The chair in which Respondent sat had no sides or arms. C.L. did not always sit on the floor during the entire time the video was playing because Respondent would whisper to her, "Come over here." C.L. reasonably understood Respondent's statement to mean that he wanted her to come to where he was seated. In response to the directive, C.L. usually would get up from the floor where she was sitting with the other students and go to Respondent. She would then be required to sit in his lap. If C.L. did not get up when Respondent whispered to her, he would pull her or pick her up and take her to his chair and put her on his lap. Even though C.L. was unable to state the exact time that the incidents described in paragraph 33 occurred, her credible testimony was that the incidents occurred about four or five times during the 2003-2004 school year. The first time C.L. was required to sit in Respondent's lap, he touched her inappropriately in her "private area," either under or over her clothes. This encounter lasted about five or ten minutes, and less time than the video played. While C.L. was sitting on Respondent's lap, she did not say anything, but she did try to get up. However, she could not get up because Respondent was holding her down. In a second incident, Respondent touched C.L. in her private area. C.L. testified that she thought, in this instance, Respondent touched her under her clothes, put his hand in her underpants, and put his fingers inside her. When Respondent put his fingers inside her, C.L. did not scream, even though it hurt and felt like "needles went through" her. During a third incident, Respondent touched C.L. in her private area, but over her clothes. On that particular day, C.L. was sitting on the floor near the back of the music room. Respondent whispered to her, "Come over here." C.L. just turned around, but did not go to Respondent. However, after C.L. did not come to him, Respondent again told C.L. to come to him. After the second directive from Respondent, C.L. got up and went to him. In this instance, C.L. was on Respondent's lap for five or ten minutes, during which he touched C.L. over her underwear. During a fourth incident, Respondent touched C.L. inside her underwear and put his fingers inside her. He may have used two hands, but only one hand at a time. Respondent used one hand to hold her on his lap while his other hand was inside her underwear and/or inside her. He would then sometimes change or alternate hands. When Respondent put his fingers or finger inside C.L., it hurt, but, again, she did not scream. C.L., as she had during the past incidents, tried to get up from Respondent's lap, but she was unable to do so because Respondent was holding her down. When it was over, Respondent let C.L. up, and she went back to her seat on the floor. The foregoing incidents did not occur every time C.L. was in music class. However, when each incident occurred, the lights in the classroom were out, the vertical blinds were closed, and Respondent was seated in his chair (which did not have sides/arms), in the back of the classroom behind the students. During these incidents, C.L. did not sit in Respondent's lap the entire class period or the entire time the video was playing. Given that the incidents happened more than two years ago, when C.L. was only about seven years old, she could not specifically identify the time during the 2003-2004 school year that the incidents occcurred. C.L. could not recall, in each of the incidents described above, whether Respondent touched her private area over or under her clothes. However, C.L. clearly recalled that in the two or three instances when Respondent touched her under her clothes, she was wearing a skirt. Even though C.L. was unable to identify the precise dates and to describe the exact inappropriate touching that occurred in each instance, C.L.'s testimony that four or five such incidents happened during the 2003-2004 school year in Respondent's class is found to be credible. C.L. recalls that at some point, there was blood in her panties. However, she does not recall whether there was bleeding after Respondent touched her in her private area. Prior to the incidents described above, C.L.'s parents had told her about "good touch, bad touch." C.L. believed that what Respondent was doing to her was inappropriate. However, until April 2004, she did not tell her parents or anyone else that Respondent had been touching her in her private area, even though she had been specifically asked if anyone had touched her in that area. C.L. initially told the law enforcement officers who were investigating her allegations that she was not afraid of anyone. However, the reason C.L. did not initially tell anyone that Respondent touched her inappropriately was that she was afraid that she would get in trouble with "the teacher." Another reason C.L. did not tell anyone what happened was that she was afraid that if she told anyone, Respondent would come and hurt her whole family. In April 2004, C.L. finally told her mother that Respondent had touched her because she was "tired of having to go to [medical] exams and missing out on class activities." Despite C.L.'s denying several times that anyone had touched her in an inappropriate manner, those earlier denials are not a basis for discounting her testimony that the incidents described above occurred. In cases such as this, children frequently delay for a significant period of time that they have been the victims of sexual abuse. Prior to C.L.'s disclosing that Respondent had touched her, no one suggested to her that Respondent had done anything to her. C.L.'s reason for stating that Respondent touched her was that he had done so. In fact, C.L.'s credible testimony was that no one had ever touched her in her "privates" like Respondent did. The Testimony of Sally Smith, M.D. Sally Smith, M.D., is board-certified in pediatrics and has worked in the field of child abuse for 19 or 20 years. During that time, Dr. Smith has handled at least 1,000 sexual abuse cases. In or about 2002, Dr. Smith became the medical director for the Pinellas County Child Protective Team. As medical director, Dr. Smith conducts examinations of children for the Child Protective Team. In addition to conducting such examinations, Dr. Smith also supervises the two nurse practitioners with the Child Protective Team who also conduct such examinations, including the nurse practitioner who examined C.L. in April 2004. According to the medical report, at the time C.L. was examined by the nurse practitioner at the CPT office, C.L. had not reported any abuse. The nurse practitioner who examined C.L. documented seeing an abnormality of the hymen, the membrane that covers part of the opening of the vagina. According to the medial report, the back part of C.L.'s hymen, the part near the rectum, was abnormal in that there was an area of the hymen that was about 25 percent missing, which indicated the abnormality was caused by a laceration. Also, there was also some scarring in that area, which indicated healing of the laceration. The type of abnormality found in C.L. is one of the few types of abnormalities considered specific for penetrating trauma. Based on her review of the examination and the photographs related thereto, Dr. Smith could not say definitively what caused the laceration. However, based on her review of the report and the photographs of C.L.'s genital area, Dr. Smith's credible testimony was that the photographs and examination report indicate that C.L. had a significant episode, or perhaps one or more episodes of penetrating trauma to the hymen-vaginal area. It takes at least several weeks to develop scar tissue. Accordingly, the fact that the area was scarred at the time of the examination indicates that the injury occurred several weeks to a month prior to examination. Respondent suggested that the injury to C.L.'s hymen may have been caused by an injury to the genital area, but presented no evidence to support this suggestion. Contrary to this proposition, C.L. has no history of previous penetrating trauma to her genital area due to an accidental injury. The type of injury/abnormality of C.L.'s hymen documented during examination is not the type seen in a straddle injury. Because the hymen is located a half inch to an inch above the surface and is protected by the outer labia in the genital area, straddle injuries do not result in hymenal injuries. Respondent suggests that the injury to C.L.'s hymen may have been caused by masturbation, but presents no evidence to support this suggestion. Contrary to Respondent's assertion, the credible testimony of Dr. Smith is that the abnormality or injury to C.L.'s hymen that was seen at the time of C.L.'s examination in April 2004 is not the type of injury seen in children who masturbate. Moreover, the abnormality or injury observed in C.L. could not be caused by C.L.'s inserting her own finger into the vaginal opening. The reason is that the child's own finger is similar in size to that of the opening of her vagina, so her finger would not cause the lacerations or trauma. However, a grown man's finger could cause such lacerations or trauma. The credible testimony of Dr. Smith is that the injury to C.L.'s hymen is evidence of sexual abuse. Moreover, the abnormality or injury to C.L.'s hymen was consistent with C.L.'s late reporting of how Respondent had inappropriately touch her. The medical report prepared at or near the time C.L. was examined by the nurse practitioner at the Child Protective Team office noted that C.L. had had three episodes of vaginal bleeding over the preceding four months, one of which lasted about ten days. This information was provided by C.L.'s mother. In this case, the episodes of bleeding can not be linked to the times that C.L. experienced the penetrating trauma described above. However, because injuries such as the one that C.L. had do not necessarily result in bleeding, such a link is not dispositive in determining when or how the injuries occurred. The credible and undisputed testimony of Dr. Smith is that the hymen of a child C.L.'s age, prior to puberty, is a relatively thin membrane that does not have a lot of blood vessels, and, therefore, a laceration of the hymen may not bleed like a cut on the skin. However, a "fair percentage" of children that have an incident of penetrating trauma to the genital area may have some fluid/discharge associated with such trauma, but not necessarily bleeding. In this case, there is no definitive medical explanation for the cause of C.L.'s bleeding. C.L.'s vaginal bleeding occurred from December 2003 through February 2004, but did not occur after Respondent was removed from the school in late April 2004. The trauma necessary to tear the hymen would be associated with some sensation for the child. However, often, in incidents such as those described in paragraphs 36 and 38, the child may not react, cry out, or make any verbal response to the penetration and/or significant trauma. According to the credible testimony of Dr. Smith, children frequently delay divulging, for a significant period of time, that they have been sexually abused. Testimony of Wade Meyers, M.D. Wade Meyers, M.D., is a child and adolescent psychiatrist and forensic psychiatrist. Dr. Meyers is currently a professor at the University of South Florida, where he is chief of the Division of Child Psychiatry in the Department of Psychiatry. During this proceeding, Dr. Meyers testified regarding his opinion of the credibility of the students who made the allegations that are at issue in this proceeding. In preparation for giving his opinion, Dr. Meyers reviewed materials which included deposition transcripts, videotaped depositions, and a number of Pinellas County investigative reports.1 Dr. Meyers did not specify which documents he reviewed for each particular student. However, Dr. Meyers did not review any videotaped depositions or videotaped interviews of C.L., but only her deposition transcript(s). Based on Dr. Meyers' review of the materials described in paragraph 65, he opined that C.L.'s allegations regarding Respondent were not credible and that she had not been abused sexually in any way by Respondent. Dr. Meyers based his conclusions and/or opinions on the four reasons set forth below. First, Dr. Meyers testified that C.L.'s allegations cannot be validated as the medical evidence and the timing do not fit logic that would match digital penetration in a young girl. This assertion is based on the medical record which indicates that the bleeding started in December 2003 and went on for five or eight to ten days. Dr. Meyers noted when the bleeding was first observed, during the Thanksgiving holiday, when students were out of school. Also, when the bleeding was first observed, C.L. had not been in school for several days and had not been in Respondent's class for about two weeks. Dr. Meyers apparently believed that the bleeding was necessarily related to C.L.'s allegations that Respondent had digitally penetrated her. Based on this belief, Dr. Meyers concluded that because C.L. had not been in Respondent's music class for about two weeks prior to Ms. L.'s discovering blood in C.L.'s underwear, Respondent could not have penetrated C.L.'s hymen. Dr. Meyers' conclusion, that the medical evidence and timing do not logically coincide with the allegation that Respondent digitally penetrated C.L., is not persuasive. This conclusion or assertion is contrary to the credible and persuasive testimony of Dr. Smith that there is not necessarily bleeding associated with digital penetration of a child C.L.'s age. Therefore, the truth regarding C.L.'s allegation that Respondent digitally penetrated C.L. need not be tied or related to any specific episode of bleeding. Second, Dr. Meyers asserted that C.L.'s initial denial and subsequent denials that any sexual abuse had occurred are a basis for not believing her later statements that Respondent engaged in the alleged conduct.2 According to Dr. Meyers, a victim of sexual abuse usually reveals such abuse in the initial interview. Dr. Meyers' conclusion, in paragraph 69, based on his assertion that victims of sexual abuse usually reveal such abuse in their initial interview, is not persuasive. Dr. Smith's credible testimony, that victims of sexual abuse or acts alleged by C.L. frequently do not disclose this information until some time after the incidents have occurred, is persuasive. Third, Dr. Meyers testified that when evaluating children for sexual abuse, it is important to not do multiple interviews. According to Dr. Meyers, when children who have initially denied that sexual abuse has occurred are interviewed multiple times, the children may feel pressured to change their answer, and they may begin to doubt if they actually forgot what happened. Therefore, their initial statements, not their subsequent statements, are more credible. Where, as in this case, C.L. was interviewed and/or questioned multiple times, Dr. Meyers testified that her subsequent statements, in which C.L. alleged inappropriate touching by Respondent, are not credible. Dr. Meyers' conclusion that C.L.'s allegations regarding Respondent are not credible because she felt pressured to make the allegations after she was questioned or interviewed multiple times is not persuasive. Admittedly, Dr. Meyers never met or interviewed C.L. or viewed any videotaped depositions or videotaped interviews of C.L. Therefore, at most, his conclusion and opinion are based solely on a review of written documents (i.e. the deposition transcript and/or investigative reports). Moreover, those conclusions and opinions are contrary to C.L.'s credible, persuasive, and clear testimony presented at this proceeding. Fourth, Dr. Meyers asserts that C.L.'s allegations lack credibility because of the leading and suggestive questioning techniques used during C.L.'s deposition and/or interviews.3 Dr. Meyers testified that the techniques used were not only improper, but likely resulted in C.L.'s having a "false memory" about the alleged incidents. According to Dr. Meyers, a false memory is one in which the source of the memory (i.e. the purported suggestive and/or leading questions) is false even though to the child the memory is real. Dr. Meyers' conclusion that C.L.'s allegations regarding Respondent are not credible, but instead are the result of a "false memory" are not persuasive. Furthermore, this conclusion and opinion are contrary to the credible, persuasive, and clear testimony of C.L. presented at this proceeding. For the reasons stated above, the conclusions and/or opinions of Dr. Meyers, as they relate to C.L., are not persuasive. Situation Involving St.H. and Sa.H. When St.H. and Sa.H. were in first grade, their mother, Ms. H. asked them how was their day at school. The girls never talked much about their teachers. However, in response to their mother's question, the girls reported that Respondent stroked their hair. Ms. H. wondered about this behavior and asked a teacher whether a teacher's stroking students' hair was normal behavior. After the teacher told Ms. H. that that was just the way Respondent was, Ms. H. thought that Respondent's behavior (stroking the girls' hair) was not necessarily inappropriate. Based on her conversation with the teacher, Ms. H. never discussed the matter with Respondent. When St.H. was in first grade, Respondent was her music teacher. During music class, Respondent would call St.H. to come up to him, and he would "take [her] waist" and sit her on his lap. While St.H. was sitting on Respondent's lap, he would stroke her hair and rub her neck and stomach. When St.H. was in Respondent's music class, the vertical blinds at the windows were always closed. St.H. recalled that she sat on Respondent's lap every music period. St.H. sat on Respondent's lap when the students in the music class were playing instruments, but did not stay on his lap the entire music period. When Respondent was showing the students how to play the various instruments, he would make St.H. get off his lap. Respondent also had St.H. to sit in his lap when he showed videos to the class. After Respondent turned the television on, he would go back to his chair, he'd then pat his leg. St.H. would then go to Respondent and sit in his lap. The reason St.H. went to Respondent and sat on his lap is because she knew what that sign, patting his leg, meant "because he does [did] that a lot and that means [meant] for me to go to him." Even though sitting on Respondent's lap made St.H. feel uncomfortable, she never told Respondent how she felt. However, St.H. did ask him why he had her sit on his lap. Respondent then told St.H. that her older sister (who at this time was about 15 years old) had sat in his lap, presumably when she was in his class. St.H. wrote about Respondent's actions in her journal, but she later disposed of the journal because the journal entries reminded her of the bad memories. St.H. would not want Respondent as a teacher again because she would not want to go through the experience she had with Respondent again. When Sa.H. was in first grade, Respondent showed videos during music class. Respondent turned out the lights when he showed the videos. When the video was showing and the lights were out, sometimes Sa.H. would have to sit on Respondent's lap. Sa.H. did not sit in his lap the entire class period, but only sat there about five minutes. When Sa.H. was sitting on Respondent's lap, he would rub her stomach and back and tap her legs. At this proceeding, more than two years after the events related to Sa.H. occurred, she could not recall when she first sat on his lap or how she knew to go to Respondent and sit on his lap. However, Sa.H. did not want to sit on Respondent's lap and felt nervous when she was on his lap. Sa.H. never told Respondent that she did not want to sit on his lap. Moreover, Sa.H. never told anyone that she was sitting on Respondent's lap during the time she was in first grade. Sa.H. would not want Respondent as a teacher again because of what he did to her. According to Sa.H., "It would be very scary again." The testimony of St.H. and Sa.H. is found to be credible, notwithstanding the conclusion of Dr. Meyers to the contrary. Respondent's Denies Alleged Inappropriate Conduct At this proceeding, Respondent testified that he never touched any student inappropriately. According to Respondent, this is evidenced by the fact that, in the criminal trial that was based on the allegations of C.L., the jury acquitted him. At this proceeding, Respondent testified that he never touched C.L. inappropriately and that she never sat in his lap. During his testimony at his criminal trial, Respondent testified that he did not recall if C.L. sat on his lap during the movies/videos. However, Respondent recalled that C.L. came to him when she was feeling sad, but she was not on his lap. Rather, Respondent recalled that C.L. stood next to him and sat on his knee for a short period of time, and he asked her what was wrong. Based on this testimony, Respondent appears to try to make a distinction between C.L. sitting on his lap and sitting on his knee. Contrary to his testimony at trial, at this proceeding, Respondent testified that when C.L. was sad or something was wrong, she came up to him and leaned on his knee. According to Respondent, he taught about 700 students a week, and, when they are sad or something is wrong, they come up to him as C.L. did. At this proceeding, Respondent testified that he never touched either St.H. or her sister, Sa.H., or had them sit in his lap. Notwithstanding Respondent's testimony at this proceeding that he never allowed any student to sit in his lap, during his deposition, he testified that he had kids in his lap all the time. In explaining this seeming discrepancy in his sworn testimony, Respondent explained that when he said students were in his lap all the time, he meant that they were "standing next to me" or "leaning on my knee when they come up to get instruments." Respondent testified that this would happen because this (i.e. getting the musical instruments) was a fun activity, and the children would get excited. However, according to Respondent, there was nothing sexual about the children standing next to him or leaning on his knee. They would simply get their instruments and return to their seats. Respondent gave several explanations that he apparently believed established that it would not be reasonable for him to engage in the alleged misconduct in light of the number of people who were regularly in and near his classroom, often with no advance notice. First, many visitors, including parents of prospective Southern Oak students, came to Southern Oak to observe the school. During these visits, the visitors sometimes went into the music classroom while class was in session. Second, Robert Ammon, principal of Southern Oak, circulated throughout the school almost every morning. Even though Mr. Ammon did not necessarily go into the music classroom every day, he would walk in or near the general vicinity of Respondent's classroom. Third, because there was a refrigerator and microwave in the office in the music room, several teachers were routinely in and out of Respondent's classroom each day to get and/or warm their food. Respondent's explanations are not a sufficient basis to support his assertion that it was not reasonable for him to engage in the alleged misconduct. In fact, the teachers who were in and out of Respondent's classroom, or more specifically, the office in the music classroom, on a regular basis, were there for a specific purpose and only for a few minutes. Respondent's testimony at this proceeding, in which he denied inappropriately touching C.L., St.H., and Sa.H., is not credible. Prior Complaints or Disciplinary Actions Against Respondent Prior to the matters at issue in this proceeding, there have been three complaints filed against Respondent during his tenure with the Pinellas County School District. Two of the complaints were determined to be unfounded, and one resulted in a letter of caution being issued to Respondent. The incident which resulted in Respondent's receiving a letter of caution, involved an act of dishonesty. Specifically, Respondent made a telephone call to someone, and, during that call, he misrepresented himself as someone calling from the superintendent's office on behalf of a School Board member. In the 2001-2002 school year, a complaint was made against Respondent. In January 2002, the assistant principal at Southern Oak notified the principal, Mr. Ammon, of allegations that Respondent had inappropriately touched students. The matter was reported to the Pinellas County School District's Office of Professional Standards, which then reported the matter to the Pinellas County Sheriff's Office. After an on-site investigation was conducted, the allegations were determined to be unfounded. The Office of Professional Standards received the investigation determination of "unfounded" from the Sheriff's Office. The Office of Professional Standards defines the term "unfounded" to mean that the conduct alleged never happened. Accordingly, the allegations in the complaint discussed in paragraph 102 were deemed not to have happened. Therefore, no disciplinary action was imposed against Respondent. After the January 2002 complaint was investigated and determined to be unfounded, Mr. Ammon met briefly and "informally" with Respondent. Although no disciplinary action was required or appropriate in this situation, Mr. Ammon discussed with Respondent the need for him to not put himself in a situation where such charges (inappropriate touching of students) might come up. During this conversation, after Mr. Ammon perceived that Respondent did not comprehend the seriousness of the issue, Mr. Ammon directed Respondent not to touch students for any reason. Mr. Ammon regularly conducted faculty meetings where he cautioned teachers to exercise common sense in their physical contact with students and reminded them of appropriate boundaries in this context. During the 2002-2003 school year, a teacher reported to Mr. Ammon that some students had come to her about Respondent inappropriately touching them. The matter was then reported to the Pinellas School District's Office of Professional Standards and to the Pinellas County Sheriff's Office. As directed by the Office of Professional Standards, Mr. Ammon interviewed the students. As with the previous complaint, following the interviews and the investigation, the allegations were determined to be unfounded, and possibly retaliatory. As a result thereof, the Office of Professional Standards deemed that the alleged conduct never occurred, and no disciplinary action was imposed on Respondent. Superintendent's Recommendation of Dismissal On or about April 28, 2004, Respondent was arrested and subsequently charged with capital sexual battery and lewd and lascivious behavior on a child. By letter dated May 30, 2004, Dr. J. Hinesley, then superintendent of the Pinellas County School District, recommended that the School Board dismiss Respondent as a teacher. According to the description of the agenda item related to Respondent's dismissal, the rationale for the superintendent's recommending dismissal was that Respondent's alleged actions were a violation of Pinellas County School Board Policy 8.25(1)(a), (c), (n), (u), and (v).4 Pinellas County School Board Policy 8.25 has been duly-adopted by the School Board. That policy enumerates offenses for which disciplinary action may be imposed and sets out the penalty or penalty range for each offense. School Board Policy 8.25(1)(a) makes it an offense for school board employees to engage in inappropriate sexual activity, including sexual battery and other activities. The penalty for employees who engage in such conduct is dismissal. School Board Policy 8.25(1)(c) makes committing a criminal act (felony) an offense for which the School Board employees may be disciplined. The penalty range for this offense is reprimand to dismissal. School Board Policy 8.25(1)(n) lists, as an offense, making inappropriate or disparaging remarks to or about students or exposing a student to unnecessary embarrassment or disparagement. The penalty range for this offense is caution to dismissal. School Board Policy 8.25(1)(u) lists, as an offense, insubordination. The penalty range for committing this offense is caution to dismissal. School Board Policy 8.25(1)(v) lists, as an offense, misconduct in office. The penalty range for this offense is caution to dismissal. Prior to this proceeding, and after the superintendent recommended Respondent's dismissal, Respondent was tried on the criminal charges and was found not guilty. Notwithstanding Respondent's being acquitted of the criminal charges, in the instant administrative proceeding, it is found that Respondent inappropriately touched C.L., St.H., and Sa.H. and also failed to observe the appropriate boundaries in his physical contact with those students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Pinellas County School Board enter a final order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 13th day of September, 2006.
The Issue The issue is whether Pinewood Estates Assisted Living Facility’s (“Pinewood” or “Petitioner”) application for renewal of its assisted living facility (“ALF”) license should be granted.
Findings Of Fact AHCA is the state agency charged with licensing of ALFs in Florida pursuant to the authority in chapters 408, part II, and 429, part I, Florida Statutes, and Florida Administrative Code Chapter 58A-5. These relevant chapters charge the Agency with evaluating ALFs to determine their degree of compliance with established rules regulating the licensure of and operation of such facilities. At all times relevant, Pinewood was a licensed ALF located in Melbourne, Florida, operating a six-bed ALF under license number 12678. Pinewood’s license also includes limited nursing services, limited mental health (“LMH”), and extended congregate care licenses. The Agency conducts inspections, commonly called surveys, of licensed providers and applicants for licensure to determine the provider or applicant’s compliance with the state’s regulatory scheme governing such facilities. AHCA’s surveys include taking a tour of the facility, reviewing resident records, reviewing the staff files, directly observing the residents, observing the staff’s interaction with the residents, interviewing the facility’s staff, interviewing the residents and their families, observing the dining experience, observing medication pass, observing the activities of the residents during the day, observing the physical plant, conducting an exit interview when possible, and documenting the survey findings. There are different types of surveys. There are initial licensure surveys, relicensure biennial surveys, complaint surveys, monitoring surveys, and revisits, which follow all of the other types. Pursuant to section 408.813(2), the Agency must classify deficiencies according to the nature and scope of the deficiency when the criteria established by law for facility operations are not met. Deficiencies must be categorized as either Class I, Class II, Class III, Class IV, or unclassified deficiencies. In general, the class correlates to the nature and severity of the deficiency. A Class I poses an imminent threat to the residents; a Class II constitutes direct harm; a Class III poses potential or indirect harm to the residents; a Class IV concerns minor violations; and unclassified violations are those that do not fit in the other categories. Normally, when the Agency cites a provider with a Class III violation, it allows 30 days for the provider to correct the deficient practice, unless an alternative time is given. The deficiency must be corrected within 30 days after the facility receives notice of the deficiency. This correction is verified by a revisit survey conducted after the 30 days have elapsed. Correction of a deficiency means not finding the deficient practice during a revisit survey. The Agency conducted a biennial relicensure survey on April 27, 2017, at Pinewood. The Agency cited Pinewood with ten Class III deficiencies related to the following tags or deficiencies: Tag A008, admissions - health assessment; Tag A052, assistance with self-administration; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training – assist with self-administration; Tag A085, training – nutrition and food service; Tag A090, training - Do Not Resuscitate Orders (“DNRO”); Tag A160, records – facility; Tag A167, resident contracts; and Tag AL243, LMH training. Lorraine Henry is the supervisor of the ALF unit for the Orlando office and was in charge of all the surveys conducted at Pinewood. She reviewed and approved all of the deficiencies or tags cited in the surveys and approved the classifications given to each deficiency. The Agency cited Pinewood with Tag A008, for Pinewood’s failure meet the standards related to admissions and health assessments, pursuant to section 429.26(4)-(6) and rule 58A-5.0181(2). Pinewood was required to ensure that the AHCA Health Assessment Form 1823 (“Health Assessment”) was completed entirely by the health care provider for all residents. Pinewood was missing a completed Health Assessment for Resident 4. On page 2, question 4, under “Status,” which asks if the resident “poses a danger to self or others,” was left blank and not answered. On page 4, question B, “Does individual need help with taking his or her medications?” was left blank and not answered. In addition, the type of assistance with medications required was not marked in the appropriate box. This deficiency poses an indirect or potential threat to residents because the facility cannot register changes in a resident’s health unless it has a completed Health Assessment. Because of this indirect threat, it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A052, a violation because Pinewood failed to meet the standards of assistance with self-administration, pursuant to rule 58A-5.0185(3). Assistance with self-administration of medication requires trained staff to open the medication container; read the label aloud to the resident; provide the resident with the medication; observe the resident self-administer the medication; and then document that the medication was provided in the resident’s Medical Observation Record (“MOR”). During this survey, Agency personnel observed Pinewood’s employee, Carmeleta Smith, fail to read the label aloud in front of the resident or to inform the resident which medication the resident was taking during the medication pass procedure. This deficiency poses an indirect or potential threat to residents because it increases the likelihood of medication errors, and it was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A054 due to Pinewood’s failure to meet the standards of medication records pursuant to rule 58A-5.0185(5). Pinewood is required to ensure that the MOR contains all of the required information and that the MOR is updated each time the medication is given. The MOR for Resident 5 failed to include the route of the medication for the 21 medications listed for that resident. The entry for Ocutive did not contain the strength or the route of the medication. Moreover, Agency personnel observed Ms. Smith’s failure to immediately sign the MOR after a medication was given to Resident 4. Also, the MOR for Resident 4 did not reflect that the morning medications had been signed as having been given in the morning for 15 of the resident’s medications. This deficient practice constitutes an indirect or potential risk to residents because it increases the likelihood of medication errors and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A085 for its failure to meet the standards of training for nutrition and food service, pursuant to rule 58A-5.0191(6). Pinewood is required to ensure that the person responsible for the facility’s food service received the annual two hours of continuing education. Peter Fellows, as the person responsible for food service, did not have the required two hours of continuing education in 2017. This deficient practice constitutes an indirect or potential risk to residents because it could cause food borne illnesses to spread to the residents, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A090 for Pinewood’s failure to meet the 12 standards of training as to DNRO, pursuant to rule 58A-5.0191(11). Pinewood is required to ensure that the staff must receive at least one hour of training in the facility’s policies and procedures regarding DNRO within 30 days of employment. Pinewood’s employee, Sharon McFall, had not received in-service training on the facility’s policies and procedures regarding DNRO within 30 days of hire. This deficient practice poses an indirect or potential risk to residents because in case of an emergency situation where a resident stops breathing, the staff has to understand the facility’s DNRO procedures and the steps that need to be taken; and, therefore, was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A160 for Pinewood’s failure to meet the standards of facility records, including admission and discharge records pursuant to rule 58A-5.024(1), which requires Pinewood to maintain accurate admission and discharge logs. Pinewood’s admission and discharge log did not include the name and date of admission for Resident 2. AHCA personnel observed Sherine Wright, the legal assistant for the administrator, and purportedly a contract employee of Pinewood, adding Resident 2’s information to the admission and discharge log after they were already residing in the facility. This deficient practice poses an indirect or potential threat to residents because the facility would be unaware as to the residents who are actually residing in the facility, and was properly classified as a Class III deficiency. The Agency cited Pinewood with Tag A167 for its failure to meet the standards of resident contracts, pursuant to rule 58A-5.024, which requires Pinewood to maintain completed resident contracts in the residents’ files. Resident 4’s resident contract failed to include the following required provisions: the facility’s refund policy that must conform to section 429.24(3), a 45-day notice of discharge, a 30-day advance notice of rate of increase, and that residents must have a health assessment upon admission and then every three years thereafter or after a significant change in the resident’s health. This deficient practice constitutes an indirect or potential risk to residents because it exposes the residents to potential financial abuse because the residents would not know their rights when they are discharged or when the rates are being increased. The deficient practice was properly classified as a Class III deficiency. Finally, the Agency cited Pinewood with Tag AL243 for Pinewood’s failure to meet the standards regarding the LMH training pursuant to section 429.075(1) and rule 58A-5.0191(8). Having elected to maintain a LMH license, Pinewood is required to ensure that the administrator, managers, and staff complete a minimum of six hours of specialized training in working with individuals with mental health diagnosis within six months of employment. Carmeleta Smith did not have the required minimum of six hours of specialized training even though she had been employed at the facility for 16 months. This requirement remains in place whether a LMH resident is present at the facility or not, so long as the facility elects to hold a LMH license. This deficient practice constitutes an indirect or potential risk to residents because without the training, the staff will not be properly trained to care for LMH residents, and was properly classified as a Class III deficiency. Throughout the duration of the relicensure survey, the Agency surveyors were routinely denied full access to facility records, resident files, and areas of the facility by the self- declared representative of Pinewood’s administrator and contract employee, Sherine Wright. Ms. Wright interfered with the Agency’s survey process by restricting access to documents and alerting residents that family interviews would be taking place. Ms. Robin Williams, an Agency surveyor, told Ms. Wright that she was interfering with the survey process, but Ms. Wright continued to control the survey process and continued to give Ms. Williams pieces of paper she said were pulled from files, rather than providing the surveyor with access to the complete files. Ms. Williams also observed Ms. Wright assisting a resident who was returning to the facility with a family member and observed her talking to the family member and helping the resident settle back into her bedroom. Ms. Smith was at the facility at that time, yet she did not assist the resident. It was Ms. Wright who assisted the resident and the family member to settle the resident back into her bedroom. Based upon their observations, she considered Ms. Wright to be staff working at Pinewood. Subsequent to the biennial relicensure survey, the Agency conducted an unannounced monitoring visit in conjunction with a complaint survey (#2017003680) on May 8 through 15, 2017. As a result of this survey, the Agency cited Pinewood with one Class III violation, Tag A190, as to Administrative Enforcement; and with one unclassified violation, Tag CZ814, as to background screening. Lorraine Henry, as the ALF supervisor for the Orlando field office, reviewed and approved the tags or deficiencies cited in this survey and their classifications. The Agency cited Pinewood with Tag CZ814 for failure to meet the standards of background screening pursuant to section 435.12(2)(b)-(d), Florida Statutes, requiring that the facility ensure that all its employees had completed a Level II background screening. During the complaint investigation, Ms. Wright denied that she was a staff person of Pinewood to a senior Agency surveyor, Victor Kruppenbacher. However, because of his observations, Mr. Kruppenbacher considered Ms. Wright to be a staff member working at the facility. Ms. Wright was the person who greeted him, and was the person who called the Administrator, Mr. Fellows, on the phone when questions arose concerning access to files or to Pinewood residents. Mr. Kruppenbacher further observed Ms. Wright interacting with the residents and providing guidance and direction to the residents. Mr. Kruppenbacher observed a resident asking Ms. Wright a question, after which she put her arms around the resident and guided the resident into the resident’s bedroom. Ms. Wright was very familiar with the resident population, called residents by their names, and answered the residents’ questions. Ms. Wright clearly appeared to control the operations at the facility; and had access to the residents, their belongings, and their areas of the facility. Therefore, she was required to have a Level 2 background screening according to Florida law, which she did not have. This deficient practice was properly classified as an unclassified violation, since it did not fall within the four classes of violations, yet exhibited a failure to follow the law regarding ALF staff members. The Agency also cited Pinewood with Tag A190, for failure to meet the standards of Administrative Enforcement pursuant to section 429.075(6) and rule 58A-5.033(1) and (2). The facility may not restrict the Agency’s surveyors from accessing and copying the facility’s records including the employee files, the facility’s records, and the residents’ files. The facility may not restrict the Agency’s surveyors from conducting interviews with the facility staff or with the residents. Once again, Ms. Wright interfered with the survey process. She would not let the other staff member on site, Ms. Smith, answer any of his questions, which left Ms. Wright, the non-licensed person on-site, as the only one who answered any of the surveyor’s questions. She would not let the surveyor speak to the residents and would not provide him with the records he requested, including the residents’ records and the staffing schedule. She refused to allow the surveyor into all of the rooms within the licensed facility and would not identify a person working in the facility, about whom he inquired. She refused to let the surveyor speak with Mr. Fellows after she called him on the phone. At the beginning of the survey, Ms. Wright denied Mr. Kruppenbacher access to an unlicensed property contiguous to the facility and tried to deny him access to the licensed facility. Ms. Wright refused to allow a worker, who was working in the office in the facility, to provide her name to the surveyor. Ms. Wright refused to identify herself to the surveyor and would only state that she was Mr. Fellows’ business partner. Ms. Smith, the staff member present, identified her as Sherine Wright. At 2:00 p.m., Ms. Wright contacted the facility’s administrator, Mr. Fellows, by telephone, but would not allow the surveyor to speak with Mr. Fellows. This deficiency poses an indirect or potential threat to residents because the Agency is unable to get a clear picture of how the facility is being operated and was properly classified as a Class III deficiency. On August 1, 10, and 11, 2017, the Agency conducted multiple revisits (revisit survey dated August 11, 2017, CGOJ12) to the relicensure survey of April 27, 2017. As a result, the Agency cited Pinewood with nine uncorrected Class III violations for the following tags: Tag A008, admissions and health assessment; Tag A054, medication records; Tag A078, staffing standards; Tag A084, training with assist with self- administration of meds; Tag A085, training as to nutrition and food service; Tag A090, training on DNRO; Tag A160, records as to the facility; Tag A167, resident contracts; Tag AL243, LMH training. These deficient practice tags all remained uncorrected from the original survey of April 27, 2017. Pinewood was only able to demonstrate that it had corrected the practice cited in Tag A052, which was cleared by the Agency as corrected. The deficiencies and the classifications were reviewed and approved by the Agency’s regional ALF supervisor, Lorraine Henry. During the revisit, Mr. Kruppenbacher was accompanied by two other surveyors, Vera Standifer and Krystal Hinson. During this relicensure survey, Pinewood’s alleged contracted employee, Ms. Wright, was not cooperative and would not provide the surveyors with the documentation they requested, for the third consecutive survey event. Ms. Wright would not provide AHCA personnel with the staff files, claiming they were privileged legal office documents from the law office of Peter Fellows. During the revisit survey, the Agency once again cited Pinewood with Tag A008 for failure to meet the standards of the admissions and health assessments. The Agency surveyors requested the file of each current resident, including the Health Assessments. The records given by Pinewood’s staff showed that Resident 1 was admitted on September 1, 2016; Resident 2 was admitted on March 23, 2017; Resident 3 was admitted on December 6, 2016; Resident 4 was admitted on March 1, 2016; and Resident 5 was admitted on January 15, 2016. Resident 1’s Health Assessment was not provided by the facility. Residents 2, 3, and 4’s Health Assessments did not include a signed and completed Section 3 related to “Services offered or arranged by the facility for the resident.” Further, Resident 5’s Health Assessment, completed on January 15, 2016, noted that the resident had a PEG tube. (A PEG tube is a percutaneous endoscopic medical procedure in which a tube is passed into the patient’s stomach through the abdominal wall most commonly to provide a means of feeding when oral intake is not adequate.) On August 10, 2017, Resident 5 no longer had a PEG tube, but the resident’s file did not contain an updated Health Assessment documenting the removal of the PEG tube. Ms. Hinson interviewed Resident 5, who stated that the PEG tube had been removed months earlier. The resident should have had an updated Health Assessment reflecting the removal of the PEG tube because this is considered a change of circumstances requiring an updated Health Assessment. There was no updated Health Assessment to show what the current risk factors would be for this resident. Moreover, the medical certification on Resident 5’s Health Assessment was incomplete because the name of the examiner was not printed; the signature of the medical examiner was illegible; there was no medical license number and no address or phone number for the examiner; and no date for the examination. Section 3 of the Health Assessment was not completed by the facility or signed by the facility. This deficient practice poses an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency again cited Pinewood with Tag A054 for failure to meet the standards of medication records. The Agency’s surveyors requested resident records, including the MORs from Pinewood’s employee, Ms. Smith. Pinewood’s other employee, Ms. Wright, would not give full access to the MORs and would only hand the surveyors some of the records from the MOR book that she determined the Agency could see instead of the entire MOR book, which is what the surveyors requested. The surveyors were only able to review the MORs from August 1 through August 10, 2017, instead of two months of MORs that were requested and customarily reviewed. The Agency was able to determine that Resident 3’s MORs were left blank for the dosage of two medications for various days: the dosage of Donepezil on August 9, 2017, at 9:00 p.m., and the dosage of Clonazepam for August 2, 3, 5, 6, 7, 8, and 9. Additionally, the MORs were not provided for Resident 4. The MORs for Resident 5 were left blank for the dosage of Loratadine from August 1 through 10, 2017, and for Oxycodone for August 9, 2017. This deficiency constitutes an indirect or potential risk to residents and Tag A054 was properly classified as an uncorrected Class III deficiency. During the same revisit surveys on August 1, 10, and 11, 2017, the Agency again cited Pinewood with Tag A167 as to records and resident contracts, and requested all of the resident files. Resident 1’s file was not provided to the surveyors; therefore, the surveyors were not able to review the resident’s contract. Resident 3’s resident contract was signed by someone other than Resident 3, but the file did not contain a power of attorney for Resident 3. Resident 4’s resident contract was never provided to the surveyors so they were not able to review it. This deficient practice constitutes an indirect or potential risk to residents and was properly classified as an uncorrected Class III deficiency. The Agency conducted a complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, USQF11), and cited Pinewood with two Class III violations for Tag A055 related to medication storage and disposal, and for Tag A057 for medication over-the-counter (“OTC”). Lorraine Henry, the ALF supervisor, again reviewed the proposed deficiencies and the classifications and approved them. Pinewood violated Tag A055 as to storage and disposal of medication pursuant to rule 58A-5.0185(6), which required the facility to ensure that the medications be centrally stored and kept in a locked cabinet or a locked cart at all times. On August 17, 2017, Mr. Kruppenbacher observed that the medication cart was left unlocked and accessible to residents. Pinewood’s failure to keep medications in a locked cabinet or cart posed an indirect or potential risk to residents because a resident could have easily taken and ingested a medication from the unlocked cart. This deficient practice was properly classified as a Class III deficiency. The Agency also cited Pinewood with Tag A057 related to medication OTC, pursuant to rule 58A-5.0185(8), which required Pinewood to ensure that OTC products be labeled with the resident’s name and the manufacturer’s label. Mr. Kruppenbacher performed an inventory of the centrally-stored medication cart and found five unlabeled OTC medications stored in the medication cart which did not contain the name of a resident. This deficient practice posed an indirect for potential threat to residents, because any resident could have ingested one of the medications from the unlocked cart, and was properly classified as a Class III deficiency. AHCA conducted an unannounced complaint survey on August 1, 10, and 11, 2017 (survey dated August 11, 2017, EN1W11), which resulted in Pinewood being cited for the following: Tag A077, related to staffing standards as to administrators as a Class II; Tag A161, related to staff records as a Class III; Tag A162, related to resident records as a Class III; and Tag CZ816, as to background screening and the compliance attestation as an unclassified violation. Ms. Henry personally wrote Tag A077 and approved the other three tags and their classifications. During the unannounced complaint survey on August 1, 10, and 11, 2017, the Agency cited Pinewood with Tag A077 for failure to meet the requirements of staffing standards as to administrators pursuant to section 429.176 and rule 58A-5.019(1), which requires that the facility be under the supervision of an administrator, who is responsible for the operation and maintenance of the facility, including the management of all staff and all persons who have access to the residents and their living areas and belongings; and who must ensure that the staff are qualified to work in the facility and have documentation of an eligible Level 2 background screening, annual documentation of being free from symptoms of communicable disease, and documentation of all of the required training. Pinewood must also maintain and provide complete resident records for all of the residents. On August 10, 2017, the surveyors’ observations led them to conclude that Ms. Wright was in control of the day-to-day operation of the facility. Ms. Wright provided all of the answers when questions were asked concerning the operation of the facility. Ms. Wright would not allow staff to answer questions without her input. She controlled what information the surveyors were allowed to review and what documents were provided to the surveyors. Ms. Wright would not allow the staff at the facility to access records, employee files, or resident records. The staff schedule provided to the surveyors by Ms. Wright revealed that “Sharon” (a/k/a Sherine) Wright was listed as the administrator. As such, Ms. Wright was required to have a Level 2 background screening. Pinewood provided no evidence that Ms. Wright had proper training, background screening results, or CORE certification to be the administrator of an ALF. Mr. Fellows, the listed Administrator according to facility filings with the Agency, was not present at the facility on August 1, 10, or 11, 2017, while the Agency survey was being conducted. On August 10, 2017, the surveyors requested the employee files and resident records from Pinewood’s staff member Ms. Smith. The facility failed to provide the employee files. After the request to Ms. Smith, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are privileged legal office records. On August 10, 2017, the facility’s information on the background screening indicated that Pinewood staff member Sharon McFall was listed as an employee on the background clearinghouse database. The staff schedule, which covered the period from August 1 through 12, 2017, documented Ms. McFall as working at the facility. Ms. Smith admitted that Ms. McFall works at the facility. The Agency’s background screening website showed that Ms. McFall was hired on November 1, 2015, and that her background screening had expired on March 25, 2017, almost five months prior to this visit. On August 10, 2017, Ms. Wright stated that the surveyors would not be allowed to review the employee files because they are legal documents. Pinewood refused to allow the surveyors to review the employees’ files; failed to have an eligible Level 2 background screening for Ms. McFall, as well as for Ms. Wright, who was in charge of the day-to-day operations; failed to provide access to the resident file for one resident; and provided an incomplete file for another resident. Taken together, these events posed a direct threat to the physical or emotional health, safety, or security of the residents. Without access to this information, the Agency is unable to determine exactly what is happening with the residents, and to determine if the facility is operating according to Florida’s applicable statutes and rules governing ALFs. Moreover, anyone who has direct access to the residents, to their personal belongings, and to their rooms, must have a Level 2 background screening. Tag A077 was properly classified as a Class II deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A161, related to staff records pursuant to section 429.275(2) and rule 58A-5.024(2). Pinewood was required to maintain personnel records for each staff member, which include, at a minimum, documentation of compliance with Level 2 background screening; documentation of compliance with all of the required training and continuing education requirements; and a copy of all licenses or certifications for all staff. As discussed at length above, Ms. Wright told the surveyors that they would not be allowed to review the employee files because they were legal documents from the legal office of Mr. Fellows. No employee files were provided to the surveyors on any of the August survey dates. This deficient practice poses an indirect or potential threat to the residents because the surveyors were not able to verify whether the staff has the required training to carry out their duties and the required documentation, such as Level 2 background screenings. This tag was properly cited as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag A162, related to resident records, pursuant to rule 58A-5.024(3). Pinewood was required to maintain each resident’s records, which must contain, among other things, a Health Assessment; a copy of the resident’s contract; documentation of the appointment of a health care surrogate, health care proxy, guardian, or a power of attorney; and the resident’s DNRO. On August 10, 2017, the surveyors requested all of the resident files from Ms. Smith. Resident 1’s file was not provided. Resident 5’s file did not contain an updated Health Assessment reflecting when the PEG tube had been removed, as detailed in paragraph 23 above. Pinewood’s failure to maintain the resident files and current Health Assessments poses an indirect or potential threat to residents and was properly classified as a Class III deficiency. During the same unannounced complaint survey of August 1, 10, and 11, the Agency cited Pinewood with Tag CZ816 related to background screening and compliance with attestation to section 408.809(2)(a)–(c). Pinewood was required to ensure that its staff members received a Level 2 background screening every five years. As documented above, Pinewood did not have a current background screen on file for employee Sharon McFall. Pinewood also refused to provide a background screening result for contracted employee Ms. Wright. Pinewood’s failure to have current Level 2 background screenings for its staff was properly labeled an unclassified violation. The Agency conducted an unannounced monitoring visit related to the complaint investigation (#2017003680) regarding unlicensed activity at Pinewood on August 1, 10, 11, and 15, 2017 (survey dated August 15, 2017, TYOU12), and cited Pinewood with Tag A190 for administrative enforcement for one Class II deficiency, and Tag CZ814 for background screening clearinghouse for one unclassified violation. During this monitoring visit, the Agency cited Pinewood with Tag A190 for administrative enforcement pursuant to section 429.075(6) and rule 58A-5.033(1), (2), and (3)(b) as a Class II violation. Pinewood is required to cooperate with Agency personnel during surveys, complaint investigations, monitoring visits, license applications and renewal procedures, and other activities to ensure compliance with chapters 408, part II, and 429, part I; and Florida Administrative Code Chapters 58A-5 and 59A-35. During this survey, Mr. Kruppenbacher was interviewing Ms. Smith when Ms. Wright interrupted the interview and stated that she was the legal representative of Mr. Fellows’ law firm and his legal representative. When Mr. Kruppenbacher asked Ms. Wright if she worked at the facility, she would not answer. Mr. Kruppenbacher asked Ms. Wright the correct spelling of her name, at which time she walked out of the interview. At 11:40 a.m., Mr. Kruppenbacher was again interviewing Ms. Smith when Ms. Wright interrupted the interview. Mr. Kruppenbacher had asked Ms. Smith to provide him with MORs for review. Ms. Wright removed the MORs from the medication cart and stated that she would give the surveyors what they needed to see. While Ms. Wright was pulling MORs from the notebook, Mr. Kruppenbacher took a second notebook that was on the medication cart. Ms. Wright grabbed the notebook from him and would not let him see it, stating that this was something that the Agency did not need to see. On August 10, 2017, Mr. Kruppenbacher asked the staff for a second time to provide access to the employee files. Ms. Wright then stated that the surveyors would not be allowed to review the employee files because they are legal office records. No employee files were provided to the surveyors despite multiple requests, both written and oral. On August 10, 2017, Mr. Kruppenbacher requested to see the background screening for staffer F, Thomas Weaver, from Ms. Wright. Mr. Weaver was listed on the staff schedule provided to the surveyors that same day, and he was observed driving Pinewood’s residents to an activity. Ms. Wright said that he was only the maintenance man and did not need a background screening. Later, AHCA surveyors requested that Ms. Wright provide the file for Resident 1, but the file was never provided. At 3:00 p.m., a surveyor was attempting to interview Resident 3, and Ms. Wright stopped the surveyor from speaking to the resident. On August 10, 2017, at 3:15 p.m., during an attempted exit interview, Mr. Kruppenbacher asked Ms. Wright if her name was pronounced “Sharon” Wright or “Sherine” Wright. Ms. Wright refused to tell him whether her first name was Sherine or Sharon and demanded that he leave the facility immediately. The identity of Sherine Wright, who also calls herself Sharon, has been a constant problem during all of the surveys. The undersigned expressed an interest during the hearing in having Ms. Wright testify, since she seemed to be a central figure throughout the survey process. Neither Ms. Wright nor any employee of Pinewood (except the Administrator, Mr. Fellows) testified at the hearing concerning the issues raised and deficiencies found by AHCA surveyors. The Agency had subpoenaed Ms. Wright to testify at hearing, yet she neither appeared nor gave an excuse for not appearing. The surveyors testified to Ms. Wright giving her name as both Sherine and Sharon at different times. Regardless of how she identified herself, the credible evidence supports that there was only one Ms. Wright present at the various surveys conducted by AHCA. Ms. Wright lives on the property where Pinewood is located, in the “back” house, which is about 30 feet behind the ALF. Ms. Wright is the owner of record of the property at 4405 Pinewood Road, Melbourne, Florida 32034, where Pinewood is located. After the surveys at issue were conducted, the Agency discovered that Sherine Wright has been convicted of a second degree felony for exploitation of an elderly person in the amount of $20,000 to under $100,000, pursuant to section 825.103, Florida Statutes, in Broward County, Florida, Case No. 01-4230CF10B. The conviction includes the special condition that Ms. Wright should not be employed or have any financial involvement with the elderly (status over 60). This second degree felony conviction is a disqualifying offense under section 435.04, which means that Ms. Wright could never receive an eligible Level 2 background screening allowing her to work at Pinewood or any licensed facility serving the elderly. From the eye witness testimony of several of the AHCA surveyors on different occasions, Ms. Wright had access to residents’ rooms, their living areas, and, presumably, their personal belongings. One surveyor, Kristal Hinson, observed Ms. Wright entering residents’ rooms on August 10, 2017. Another, Vera Standifer, observed the same behavior by Ms. Wright. At the April 27, 2017, visit, surveyor Robin Williams saw Ms. Wright take a resident to her room and help her settle in. Mr. Kruppenbacher observed Ms. Wright with her arm around a resident, walking him to his room. Ms. Wright clearly had access to files, to resident records, and to staff records. She was observed having access to residents’ medications and the medications chart. Despite these observations by AHCA surveyors, Mr. Fellows testified that Ms. Wright was merely a contract employee of Pinewood who had no access to residents, their belongings, or their private living spaces. The overwhelming evidence in this matter support AHCA’s surveyors on Ms. Wright’s involvement with resident care. Other than Mr. Fellows’ testimony on this issue, no evidence was presented by Pinewood to support a contrary view. Not only did Ms. Wright have access to all aspects of the residents’ lives and the facility’s files, but she was forcefully obstructionist whenever any surveyor made reasonable requests for files and records that are required by state law and rules to be kept by the facility. She was neither a licensed professional in any aspect of resident care nor was she an attorney, yet she repeatedly refused to cooperate with even the most basic requests from the surveyors, often claiming some unspecified legal privilege concerning the documents. She only added to the surveyors’ personal observations leading to findings that significant violations occurred. After all, how can a surveyor confirm the existence of required records when the only identified, non-licensed person present at the surveys refused them access, often, as she said to the surveyors, because the requested documents were somehow “legally protected” with her being some sort of representative of Mr. Fellows’ law firm? They were “legally protected,” but only from unlicensed Pinewood personnel who had no business seeing them, not from AHCA surveyors with every right to examine all facility records, especially on a relicensure survey. The surveyors had every justification for believing Ms. Wright was involved in the day-to-day operations of the facility. Moreover, when the surveyors were on site, she was the one who contacted the absent Mr. Fellows by telephone to inform him as to what was transpiring. Yet Mr. Fellows never asked to speak with the surveyors when called during their visits, nor did he direct Ms. Wright to cooperate with their reasonable requests. Each of the surveyors frankly testified that they believed Ms. Wright worked for Mr. Fellows or was his business partner. They were each justified in citing the facility for its complete failure to cooperate throughout the survey process. From at least April 27 to August 11, 2017, Pinewood had an individual working at the facility and running its day-to-day operations with a second degree felony conviction for exploitation of the elderly, a disqualifying offense. Having such a person working at Pinewood poses a direct threat to the physical or emotional health, safety, or security of the residents because this is a person who, as a matter of law, is forbidden to work with the residents of an ALF because her criminal history places the residents’ health and welfare at serious and direct risk of harm. This deficient practice is a serious offense that was properly classified as a Class II violation. During the exit interview, the surveyors informed the facility that it had failed to provide the employee files, the MORs notebook, the August 2017 MOR for Resident 4, the resident file for Resident 1, and the dates of birth for apparent staffers Ms. Wright and Mr. Weaver, as well as background screenings for Ms. Wright. Pinewood failed to cooperate with the survey process, to allow the surveyors to conduct a private interview with Resident 3, to provide requested employee records, to provide Resident 1’s file, and to provide the complete MORs. These facts, along with the failure to have Ms. Wright identify herself, and to provide the dates of birth for Mr. Weaver and herself pose a direct threat to the physical or emotional health, safety, or security of the clients because the Agency cannot determine whether Pinewood is following the applicable state rules and statutes; and, therefore, the Agency cannot ensure the safety of the residents. Tag A190 was correctly classified as a Class II deficiency. To add to the lack of control by Mr. Fellows as the nominal administrator of Pinewood, interviews with non-facility nursing personnel further supported the lack of institutional control demanded of facilities that care for the elderly. One local nurse interviewed by Mr. Kruppenbacher said she was uncomfortable working at the facility because the facility required her to provide nursing care in the bathroom, and required a staff person to be present in the bathroom when the care was being provided. This negated any privacy rights of the resident under that nurse’s care. Pinewood failed to provide a safe environment, and to keep certain residents free from verbal abuse and neglect. Its failure to allow residents to be treated with respect and consideration for personal dignity and privacy, along with the failure to provide a 45-day notice before discharging Resident 6 over an insurance issue, posed a direct threat to the physical or emotional health, safety, or security of that resident. This supports that Tag A030 was properly classified as a Class II deficiency. During the licensure period, Pinewood committed 30 deficiencies, including nine uncorrected Class III deficiencies, three Class II violations, and three unclassified violations involving background screening. All of these demonstrate that Pinewood did not meet the minimum licensure standards to maintain licensure, and was never in compliance with the requirements set out in the authorizing statutes and applicable rules during the surveys conducted at the ALF. During this period, Pinewood did not pass a single biennial survey, a revisit survey, a complaint survey, or monitoring surveys, thus never demonstrating regulatory compliance. Pinewood’s willingness to operate in regulatory noncompliance in addition to allowing a person with a disqualifying offense, and who should have been prohibited from working at an ALF, to operate the facility, and to allow non- background screened employees to provide care and services to residents poses a direct and indirect threat to the health and safety of Pinewood’s residents. Therefore, upholding the Agency’s denial of licensure renewal is the only way to ensure the health, safety, and welfare of Petitioner’s residents. At the hearing, Mr. Fellows submitted exhibits, which he testified he sent to the Agency by facsimile or by mail sometime after April 27, 2017, in an attempt to correct the deficiencies cited in the April 27, 2017, survey. However, Mr. Fellows does not know or remember the dates when the documents were mailed or faxed or who sent them. The Agency objected to Petitioner’s exhibits on the grounds of authenticity. Without any testimony from agents or employees of Pinewood, it is impossible to determine whether these documents were prepared in the normal course of resident care; whether they were completed well after the actual care, if any, had been provided; or are even responsive to the deficiencies alleged in the NOI issued by AHCA. Therefore, they are entitled to little, if any weight, for purposes of this Recommended Order. Mr. Fellows testified that the Agency is required to do a desk review of documents he allegedly faxed to AHCA’s regional office. He claims the documents offered clear up any and all issues raised by the Agency in its NOI. However, without authentication as to the timeliness and thoroughness of the documentation as responsive to the violations found by AHCA, these documents are hearsay, unsupported by evidence as to their authenticity by anyone in a position to know when, how, and upon what basis they were created. The undersigned cannot rely upon the faxed documentation, even if it did address some of the principal issues raised by the Agency, as evidence of compliance. The most honest statement made by Mr. Fellows was that he probably got in “over his head” concerning his venture of trying to run an ALF. He was rarely present at the facility during the many months the surveys were taking place. During this time, he was practicing law in Miami, far from the day-to- day operations of Pinewood. Administrators are not supposed to run facilities as absentees, having no other licensed administrative staff present. Moreover, he never had a licensed assistant administrator or other professional present to speak to the surveyors on his behalf. The Agency was justified in making all of its findings in the series of seven surveys in 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order upholding the Agency’s decision to deny Pinewood’s application for relicensure. DONE AND ENTERED this 30th day of November 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2018. COPIES FURNISHED: Lourdes A. Naranjo, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Andrew Beau-James Thornquest, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330 St. Petersburg, Florida 33701 (eServed) Peter Fellows Pinewood Estates Assisted Living Facility 4055 Pinewood Road Melbourne, Florida 32934 (eServed) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Justin Senior, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue The issues in this case are whether Respondent, Linda Lindquist, committed the acts alleged in the Administrative Complaint; whether the alleged conduct constitutes violations of Subsections 1012.795(1)(b), 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e); and, if so, whether Respondent's teaching certificate should be suspended or otherwise sanctioned pursuant to Subsections 1012.795(1) and 1012.796(7), Florida Statutes.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 300763, covering the area of art. The certificate is valid through June 30, 2011. At all times pertinent to this proceeding, Respondent was employed as an art teacher at Pinecrest Elementary School in the Hillsborough County School District. Vicki R. Dotson has been the principal of Pinecrest Elementary School since July 1999. Prior to that time, she was the assistant principal at the school. Dotson was Respondent's supervisor during the years 1999 to the present. During the 1999-2000 school year, Respondent would arrive late for work and leave work early without permission. She was reprimanded for those indiscretions, but did not alter her behavior. The behavior continued throughout the 2000-2001 and 2001-2002 school years. During the 2000-2001 and 2001-2002 school years, Respondent failed to properly complete student referral forms and had to be frequently admonished about using proper classroom management techniques. She did not modify her management style. Respondent received an overall unsatisfactory evaluation during the 2001-2002 school year. An action plan was prepared by the school administration to assist Respondent during the 2002-2003 school year. Respondent yelled at and/or physically struck students during the 2002 school year. Her overall evaluation for the 2002-2003 school year was unsatisfactory. Respondent failed to provide lesson plans for a substitute teacher in 2002. In response to a request by the school principal that she do so, Respondent faxed a response saying, "Please use your full time art teachers [sic] sub plans. I'm sure they are excellent." The school board terminated Respondent's employment on or about October 27, 2003. Respondent appears to be incompetent or unwilling to properly perform her duties as an art teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission permanently revoking Respondent's Florida Educator's Certificate. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 of November, 2006. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Linda Lindquist 2209 North Riverside Drive Tampa, Florida 33602 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner Ann Storck Center, Inc., is a non-profit agency with a volunteer Board of Directors which began in 1956 when Ann Storck opened her first group home in Broward County to assist children with mental retardation. Petitioner serves children and young adults with developmental disabilities by providing preschool, developmental training, prevocational training, and residential services in several intermediate care facilities for the mentally retarded (ICF/MR). The individuals served by Petitioner at the Pembroke Pines cluster are within the severe to profound range of mental retardation and have significant secondary disabilities, such as cerebral palsy, autism, and epilepsy. There are medically fragile and developmentally disabled individuals at the Pembroke Pines cluster facility. Several of them are tube fed and have significant seizure problems or renal problems. Other than reimbursement under the Medicaid laws and other funds from government agencies, Petitioner obtains its funds from charitable endeavors such as the operation of a thrift shop six days per week, every week for the past seventeen years, together with numerous other fund raising efforts. Petitioner's budget for providing services to individuals with developmental disabilities is $300,000 to $400,000 in excess of the Medicaid and other government funding which is provided each year. In the fiscal year ending June 30, 1990, which is the subject of the cost report and desk audit involved in this proceeding, Petitioner had a deficit of almost $120,000 dollars at the Pembroke Pines cluster. Petitioner does not have cash reserves. If, in addition to that deficit, Petitioner is required to pay back money to the Department and have a reduced Medicaid reimbursement rate at the present time, Petitioner cannot survive the consequences. Although Petitioner is the provider of all ICF/MR services at the Pembroke Pines cluster facility, the Department holds the Medicaid provider number. Medicaid cost reports are filed by Petitioner every year, using the Department's provider number. In those cost reports, Petitioner includes cost figures provided to it by the Department for the Department's costs related to the Pembroke Pines cluster facility. The same certified public accountant has been filing the Medicaid cost reports for the Pembroke Pines facility on Petitioner's behalf since 1984. Although he performs the facility's monthly accountings and performs an annual audit, that C.P.A. is not in a position to verify the figures provided to Petitioner by the Department. Accordingly, each year's cost report contains a disclaimer letter from him, and the Department has never raised any concerns regarding that letter. Each year's cost report has been completed in accordance with the Department's directions to Petitioner. Specifically, Petitioner includes all costs of rendering ICF/MR services at the Pembroke Pines cluster. The Department then uses each June 30 cost report to obtain Medicaid funds from the federal government. Those funds have been paid to the Department and not to Petitioner since the Department considers itself to be the provider of ICF/MR services at the Pembroke Pines cluster. Prior to 1991, the Department did not reimburse Petitioner pursuant to the Medicaid cost reports filed by Petitioner representing the actual costs which Petitioner had expended in providing ICF/MR services. Rather, the Department established Petitioner's Medicaid per diem reimbursement rate pursuant to a fixed rate contract. By doing so, the Department reimbursed Petitioner for services rendered at a rate less than Petitioner's actual costs and less than the money the Department received from the federal government utilizing Petitioner's cost report. The Department retained those additional monies. Although audit reports were drafted by the Department as far back as 1987 and as far back as for the fiscal 1985 cost report for the Pembroke Pines cluster, the Department held back those audit reports until June of 1991 because the Department had not established procedures for conducting audits of the cluster facilities and had not trained staff to perform those audits until that time. The Department's policies on how to process desk audits, even when finalized in 1991, were never published as a rule, were not generally made available to persons other than the Department employees who attended the training meetings, and were not explained during the final hearing in this cause. In 1989, Petitioner, other providers of ICF/MR services, and a trade association representing ICF/MR providers filed a lawsuit against the Department and against two Department officials in the United States District Court for the Southern District of Florida, alleging that the manner in which the Department reimbursed providers of ICF/MR services did not comply with federal law. On June 17, 1991, the United States Magistrate Judge issued a report recommending that a preliminary injunction be entered against the Department. Based on that Report, oral argument, and an independent review of the file, the United States District Judge entered an Order Granting Preliminary Injunction on September 13, 1991. The 17-page Order Granting Preliminary Injunction was both mandatory and prohibitory. It was held that the Department's method of reimbursing operators of cluster facilities such as Petitioner pursuant to a fixed-rate contract rather than pursuant to a reimbursement plan for providers of ICF/MR services violated Title 42 U.S.C. Section 1396(a)(13), known as the Boren Amendment to the Medicaid Act. Pursuant to the Boren Amendment, the Department was required to have established reimbursement rates which are "reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in order to provide care and services in conformity with applicable state and federal laws, regulations, and quality and safety standards." The federal court ordered the Department to cease reimbursing its cluster providers pursuant to a fixed-rate contract and ordered the Department to formulate a new reimbursement plan which complied with the substantive requirements of the Boren Amendment. The federal court ordered the Department to file its new plan by October 4, 1991, with the rates of reimbursement established under that plan to be retroactive to September 4, 1991. The court specifically held that the Department's argument that it was the provider of ICF/MR services because it held the provider number was ". . .false to the point of absurdity. . . ." The Department responded with an amended reimbursement plan for providers of ICF/MR services effective July 1, 1991. Medicaid is a prospective cost reimbursement system. The reimbursement rate is set prospectively based upon historic data. In Florida there are two rate semesters each year. Therefore, April 1, 1991, would be the first rate period affected by the Department's audit of the Pembroke Pines cluster cost report for the fiscal year ending June 30, 1990. The Department began its calculations relative to its audit of the Pembroke Pines cost report in approximately February of 1991. The calculations were not completed until June of 1992. The Department's June 12, 1992, letter memorializing the results of the Department's desk audit notified the Department and Petitioner as to the per diem reimbursement rate for the Prembroke Pines cluster facility effective with the April 1, 1991, rate semester; with a recalculation effective July 1, 1991, (the effective date of the new reimbursement plan ordered by the federal court); and with a recalculated rate effective September 1, 1991 (for some unexplained reason). When those rates were calculated and disclosed pursuant to the June 12, 1992, letter some nine months after the federal judge had rejected the Department's position that the Department was the provider of ICF/MR services because it held the provider number, the calculations were done and the reimbursement rate was established as though the Department was the provider of ICF/MR services at the Pembroke Pines cluster. In conjunction with the Department continuing to maintain that position in spite of the federal injunction against it, the audit letter explaining the audit adjustments and establishing the new reimbursement rates was sent by the Department's Tallahassee office to the Department's Fort Lauderdale office. When the Department's Residential Services Director for District 10 received the audit letter, he contacted the Tallahassee office of the Department. He requested, as he had done on a number of occasions previously, that Petitioner be reimbursed for excess costs above what the Department was allowing or that Petitioner receive an interim rate increase. That renewed request was denied by the Tallahassee office. The Residential Services Director was aware that Petitioner had been losing money operating the Pembroke Pines facility, that Petitioner was not being reimbursed for expenditures above the amount paid under the old fixed-rate contract system, and that Petitioner supplemented its reimbursement from the Department through fund raising activities by necessity. Since he, as part of his duties, attended admission and discharge meetings, attended licensure surveys, and had been involved with physical plant repairs and maintenance to the Pembroke Pines facility since 1987, he was familiar with the excellent survey reports which Petitioner receives regarding its operation of the facility, was familiar with Petitioner's excellent quality of care, and with Petitioner's efficient manner of providing services. The desk audit contained one positive adjustment. It increased Petitioner's operating expenses by $29,841. The reason for that positive adjustment was that the Department had provided to Petitioner an incorrect figure for the Department's costs related to the facility during the fiscal year ending June 30, 1990. That positive adjustment is a correct figure and increases the total allowable operating expenses for the Pembroke Pines cluster facility for the fiscal year to $1,619,888. Each cost item within the total allowable operating expenses of $1,619,888 is a reasonable, necessary, and ordinary cost incurred and expended for the operation of the Pembroke Pines cluster facility in an efficient and economical manner. The audit letter contained 9 negative adjustments for a total negative adjustment of $50,979. Each of those 9 negative adjustments is incorrect and is without basis. Each negative adjustment simply reduces the total cost in that particular category by an arbitrary percentage, and none of those negative adjustments is in accordance with the reimbursement plan governing providers of ICF/MR services. The erroneous negative adjustments made during the desk audit of the June 30, 1990, cost report resulted in a Medicaid reimbursement per diem rate of $184.91 for the rate period effective April 1, 1991, for level 8 and level 9 patients, which are the most severely disabled patients and are the only types of patients who receive ICF/MR services at the Pembroke Pines cluster facility. That per diem rate is incorrect. The correct Medicaid reimbursement per diem rate based upon proper auditing procedures and based upon the reimbursement rate plan is $191.36. Those proper auditing procedures include, for example, using the reimbursement plan in effect at the time the rates are to be calculated, something not done by the Department which used the reimbursement plan effective July 1, 1991, to compute the rates effective April 1, 1991. The errors made in the desk audit of the June 30, 1990, cost report are still causing Petitioner to be underpaid for its ICF/MR services. The June 30, 1990, cost report determines the base rate, for example, for the October 1, 1992, rate semester, during which semester the final hearing in this cause was conducted. The Department has been reimbursing Petitioner during the October 1, 1992, rate semester using a per diem rate of $212.05 rather than the correct figure of $216.12 per day per patient. The erroneous negative adjustments made during the desk audit were caused by the Department's use of the fixed-price contract rather than the ICF/MR rate plan to establish Petitioner's reimbursement rate. The desk audit report itself refers to the 9 negative adjustments as being contract adjustments. Further, the person who performed the audit testified at the final hearing that although all of the expenses would have been allowed under the published rate plan, without the negative adjustments, the audit was performed pursuant to instructions given to her by other Department employees to make adjustments pursuant to the fixed-rate contract because the per diem rate was to be established based on the Department's total costs as a District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding the positive audit adjustment to have been properly made; Finding the negative audit adjustments to have been improperly made; Determining the total allowable operating expenses for the Pembroke Pines cluster facility for the fiscal year ending June 30, 1990, to be $1,619,888; Establishing the reimbursement rate for the facility's level 8 and level 9 care for the April 1, 1991, rate semester to be $191.36 per patient per day; Establishing the reimbursement rate for the facility's level 8 and level 9 care for the October 1, 1992, rate semester to be $216.12; and Recalculating the reimbursement rate for the other rate semesters subsequent to April 1, 1991, in accordance with this Recommended Order. DONE and ENTERED this 16th day of April, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 16th day of April, 1993. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered A, C, D, F-O, Q, R, T- W, Y-AH, AK, AN, AQ, AR, AT-AW, AZ, BC-BE, BG-BI, BM, BP-BS, BU-BX, BZ, CA, CC- CF, CH-CJ, CM-CO, CQ, and CS-DA have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered B, E, P, S, X, AM, AO, AS, AX, BF, BJ, BL, BO, BY, CG, CK, CL, CR, and DC-DE have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Petitioner's proposed findings of fact numbered AY, BA, BB, and CP have been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed findings of fact numbered AI, AJ, BN, BT, and DB have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered AL, AP, BK, and CB have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 1, 10, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 9, and 11 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 3-5, 12, 14-20, 24, and have been rejected as being subordinate to the issues herein. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 7, 8, and 21-23 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: Steven M. Weinger, Esquire Kurzban, Kurzban & Weinger, P.A. Second Floor 2650 Southwest 27th Avenue Miami, Florida 33133 Karel Baarslag, Esquire HRS Medicaid Office Building Six, Room 234 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination in this case is whether Rules 28-25.004 and 28-25.006(1), Florida Administrative Code, are vague and arbitrary as defined in Sections 120.52(8)(d) and (e), Florida Statutes, and therefore constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner, SEWELL CORKRAN, is a resident of Collier County, Florida, and past President of the Collier County Audubon Society. Petitioner’s standing to bring this action was not contested. Respondent, ADMINISTRATION COMMISSION, is the agency of the State of Florida vested with the statutory authority for the promulgation of Rules 28-25.002, et seq., Florida Administrative Code, pertaining to conservation and development within the Big Cypress Area. The DEPARTMENT OF COMMUNITY AFFAIRS (hereinafter AGENCY) is duly authorized to represent the ADMINISTRATION COMMISSION in these proceedings. Rules 28-25.004 and 28-25-006(1), Florida Administrative Code, set forth below, were adopted on November 28, 1973. Stipulated Facts There have been no examples of development in the Big Cypress Area of Critical State Concern such as that described by Petitioner, wherein lands that have been totally altered, have been one-hundred percent developed subsequent to agriculture. Development of ten (10) percent of a site in the Big Cypress Area of Critical State Concern is a reasonably acceptable amount of development. Agency Administration of Rule Chapter 28-25 As indicated above, Rule Chapter 28-25, Florida Administrative Code, was initially promulgated in 1973 pursuant to Section 380.05, Florida Statutes, for the purpose of protection and conservation of the Big Cypress Area of Critical State Concern (ACSC). The challenged agricultural exemption applicable to the Big Cypress ACSC is set forth in Rule 28-25.004, Florida Administrative Code, which provides: Agricultural Exemption. The use of any land for the purpose of growing plants, crops, trees, and other agricultural or forestry products, raising livestock or for other purposes directly related to all such uses are exempt from these regulations. However, whenever any person carries out any activity defined in Section 380, Florida Statutes, as development or applies for a development permit, as defined in Section 380, Florida Statutes, to develop exempted land, these regulations shall apply to such application and to such land. The challenged site alteration provisions of Rule 28- 25.006(1), Florida Administrative Code, limit such development to ten percent providing: Site Alteration. Site alteration shall be limited to 10% of the total site size, and installation of non permeable surfaces shall not exceed 50% of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The AGENCY construes Rules 28-25.004 and 28-25.0061, Florida Administrative Code, as complementary. Pursuant to the agency’s construction and application of these rules, if a parcel of land is exempted for agricultural purposes, and is then altered for development purposes as defined in Section 380.04, Florida Statutes (1995), that development, pursuant to Rule 28- 25.006(1), Florida Administrative Code, would be limited to only ten percent of the total site size. Under the agency’s construction and application, the rules are not mutually exclusive, and regardless of an agricultural exemption, development will only be allowed on a maximum of ten percent of the total parcel. The agency makes no distinction made between whether the site is pristine or has been previously disturbed. The construction and application of the rules by the agency has been consistent. In implementing these rules development has been limited to only ten percent of a total site. There is no evidence of any instances in which a site that had been altered under the agricultural exemption was subsequently altered for development purposes to an amount greater than ten percent. There is no evidence that such a subsequent alteration from agriculture to development has ever been attempted. The agency reviews all development orders that are issued in the Big Cypress ACSC based upon established guidelines and standards. The evidence reflects that currently the AGENCY is in the process of appealing a development order issued by Collier County concerning Rule 28-25.006(1), Florida Administrative Code, which involves a request for development of a site previously disturbed by a spoil bank. In that case, the amount of land to be developed was proposed to be in excess of ten percent. The requested conversion was not from agricultural to development, as that term is defined in Section 380.04, Florida Statutes (1995). Because the spoil bank disturbed more than ten percent of the total site, the agency appealed the development order. The record indicates that this appeal is currently going through settlement negotiations wherein development will be limited to ten percent, regardless of the size of the disturbed area created by the spoil bank. The agency considers a number of factors when amending a rule. One of the factors is whether there has been much controversy associated with the rule, which would be one indication that the rule is so vague as to cause confusion in its understanding and inconsistency in its application. This has not been the case where these Big Cypress ACSC rules have been applied. County land development regulations may be stricter then rules promulgated or approved by the AGENCY, pursuant to Rule 28-25.013, Florida Administrative Code, which provides: In case of a conflict between Big Cypress Critical Area regulations and other regulations which are a proper exercise of authority of a governmental jurisdiction, the more restrictive of the provisions shall apply. Collier County’s Land Development Regulation 3.9.6.5.1(7) is more restrictive than Rule 28-25.004, Florida Administrative Code, which deals with the site alteration exemption for agricultural purposes. The following conditions, as applicable, shall be addressed as part of and attachments to the agriculture land clearing application: * * * (7) The property owner, or authorized agent, has filed an executed agreement with the development services director, stating that within two years from the date on which the agricultural clearing permit is approved by the development services director, the owner/agent will put the property into a bona fide agricultural use and pursue such activity in a manner conducive to the successful harvesting of its expected crops or products. The agency does not have statutory authorization to regulate agriculture, which is explicitly exempted from the definition of development in Chapter 380, Florida Statutes (1995), in the Big Cypress Area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Petition filed in this matter is hereby DISMISSED. DONE and ORDERED this 21st day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings 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 21st day of April, 1997. COPIES FURNISHED: Sewell Corkran 213 9th Avenue South Naples, Florida 33940-6847 Bob Bradley Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue Is Petitioner entitled to compensation for the sale of agricultural products, and, if so, how much?
Findings Of Fact On or about August 28, 2001, Petitioner sold F.O.B. (Free on Board) at Petitioner's farm to P.S.L. Landscape Services Inc. (hereafter, PSL), 16 Crepe Myrtle trees 14 feet tall and 5 Live Oak trees 2.5 -3.0 inches in Diameter Breast High for a total costs, including tax, of $4,208.20. These trees were dug and wrapped in accordance with the standards of the American Association of Nurseryman in the afternoon of August 30, 2001. The tree roots balls were 40 inches in diameter, and the root balls were placed in wire baskets lined with burlap. The trees were placed upon a flatbed truck with the tops of the trees resting on a rack, and the entirety of the trees, except the roots, covered with a plastic screening material used for this purpose to keep the leaves from becoming wind burned in transit. The trees were transported overnight to PSL where they were received Broward County the following morning at 8:00 a.m. The trees were received and signed for by a representative of PSL, Randy Smith. The documents accompanying the shipment were introduced as part of Petitioner's Composite Exhibit 1. The first of these documents signed by Smith states: Attention: We do not replace trees. If trees are not in satisfactory condition when received, do not accept them. So please take care of your trees. Refer to watering guide in our catalog. The second document signed by Smith provides in bold type at the bottom of the page: DO NOT REFUSE TO UNLOAD THE TRUCK. If there is a serious problem and you question the merchandise, call our office immediately. Our number is 352 493 2496. PSL provided the freight company two checks, one to the freight handler for the freight and the other for 4,208.20 to Petitioner. This check was delivered to the Petitioner by the freight company and deposited by the Petitioner in due course. The Petitioner was notified several days later that a stop payment order had been received on the check for $4,208.20 by PSL. This was the first time the Petitioner was aware of a problem with the merchandise. PSL had not contacted the Petitioner about any problem with the shipment. When Mr. George Kijewski of PSL was contacted regarding the stop payment order, he responded that the trees had wilted. He wrote a letter dated December 21, 2001, to the Department of Agriculture in which he stated: Our firm ordered material from A.D. Andrews Nursery for one of our projects. Two Live Oaks were not number one as ordered. The Crepe Myrtle came in bone dry, not wet as the nursery states. The nursery dug up the plant material ordered and left items in the field until they were loaded onto truck for delivery. They never went to holding area prior to loading to get watered or hardened off. When we got them they were wilting . . . [.] Mr. Deming was present when the trees were prepared. Mr. Kijewski was not present when the trees were prepared. Mr. Deming described the manner in which the trees were dug, prepared for shipment, and shipped. The Crepe Myrtles were dug using a tree spade; the root balls were placed in burlap- lined wire baskets; and the trees placed on the trailer bed where they were secured and covered with a plastic screen to protect them from wind in transit. The Oaks were handled in a similar manner. The trees were not watered; however, the area had received approximately 1.5 inches of water in the seven days prior to shipment. The roots were wet enough to cause the burlap to be damp. The shipping documents do not reflect any wilting or problems although the documents, as quoted above, advised that product should not be received if not in good shape. No notes were made upon receipt reflecting the alleged poor condition of the trees. The trees were sold F.O.B. at Chiefland, and were the property of PSL when loaded.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order adopting these findings and conclusions of law, directing PSL to pay to Petitioner $4,208.20 within 14 days of receipt of its final order; and, if PSL fails to abide by the Department's order, directing the surety to make good on its bond in the amount of $4,208.20. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of April, 2002. COPIES FURNISHED: Andy D. Andrews A. D. Andrews Nursery Post Office Box 1126 Chiefland, Florida 32644 Brenda D. Hyatt, Bureau Chief Department of Agriculture 541 East Tennessee Street Tallahassee, Florida 32308 George Kijewski P.S.L. Landscaping Services, Inc. Post Office Box 9421 Port St. Lucie, Florida 34985 Deborah A. Meek Cumberland Casualty & Surety Company 4311 West Waters Avenue Suite 401 Tampa, Florida 33614
