The Issue Whether Petitioner’s application for change of ownership should be granted or denied on the basis of the allegations set forth in the Second Amended Notice of Intent to Deny (“Second Amended NOID”).
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the prehearing stipulation. Parties The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALFs”) and enforcement of applicable state statutes and rules governing assisted living facilities pursuant to chapters 408, part II, and 429, part I, Florida Statutes, and chapters 58A-5 and 59A-35, Florida Administrative Code. In carrying out its responsibilities, AHCA conducts inspections (commonly referred to as surveys) of licensed ALFs to determine compliance with the regulatory requirements. The Agency’s evaluation, or survey, of an ALF may include review of resident records, direct observations of the residents, and interviews with facility staff persons. Surveys may be performed to investigate complaints or to determine compliance as part of a change of ownership process. While the purpose of the survey may vary, any noncompliance found is documented in a standard Agency form entitled “Statement of Deficiencies and Plan of Correction (“Statement of Deficiencies”).2/ The form is prepared by the surveyor(s) upon completing the survey. Deficiencies are noted on the form and classified by a numeric or alphanumeric identifier commonly called a “Tag.” The Tag identifies the applicable regulatory standard that the surveyors use to support the alleged deficiency or violation. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and severity of the deficiency. Dixie Lodge submitted an application seeking to change ownership of its facility in July 2015 and was issued a provisional license to operate Dixie Lodge as an ALF. At all times material hereto, Dixie Lodge was an ALF under the licensing authority of AHCA. Dixie Lodge has been licensed under previous owners for approximately 30 years. To date, Dixie Lodge operates a 77-bed ALF with limited mental health specialty services. AHCA conducted surveys of Dixie Lodge as it related to Dixie Lodge’s CHOW application, commonly referred to as a CHOW survey. The Agency conducted two surveys of Dixie Lodge’s assisted living facility. The Agency conducted a CHOW survey on September 9, 2015. On November 6, 2015, the Agency conducted a follow-up survey to determine whether Dixie Lodge had corrected cited deficiencies. AHCA’s surveyors documented deficiencies and cited Dixie Lodge for violating statutory and rule requirements in several areas of operation. The deficiencies are incorporated in the Statement of Deficiencies, which were prepared after each survey. When a CHOW survey reveals deficiencies, the Agency can deny the upgrade from a provisional license to a standard license. If a provider has three or more Class II violations, such as alleged in this matter, the Agency may deny the upgrade to a standard license. A Class III violation warrants a follow- up visit to give the licensee or applicant an opportunity to fix the alleged deficiency. The Agency may also consider the severity of the violation. Allegations Regarding Class II Deficiencies The AHCA surveyor, Lesly Linder, who participated in the CHOW survey on September 9, 2015, found several deficiencies. As set forth in the Statement of Deficiencies for September 9, 2015, Dixie Lodge was cited for three Class II deficiencies in the following areas: (Tag A0025) resident care- supervision; (Tag A0032) resident care-elopement standards; and (Tag A0165) risk management and quality assurance. Tag A0032: Resident Care and Supervision Resident care and supervision is addressed in section 429.26(7) as follows: (7) The facility must notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment. The notification must occur within 30 days after the acknowledgment of such signs by facility staff. If an underlying condition is determined to exist, the facility shall arrange, with the appropriate health care provider, the necessary care and services to treat the condition. Resident care and supervision is also adressed in Florida Administrative Code Rule 58A-5.1082(1) as follows: An assisted living facility must provide care and services appropriate to the needs of residents accepted for admission to the facility. SUPERVISION. Facilities must offer personal supervision as appropriate for each resident, including the following: Monitoring of the quantity and quality of resident diets in accordance with Rule 58A-5.020, F.A.C. Daily observation by designated staff of the activities of the resident while on the premises, and awareness of the general health, safety, and physical and emotional well-being of the resident. Maintaining a general awareness of the resident’s whereabouts. The resident may travel independently in the community. Contacting the resident’s health care provider and other appropriate party such as the resident’s family, guardian, health care surrogate, or case manager if the resident exhibits a significant change; contacting the resident’s family, guardian, health care surrogate, or case manager if the resident is discharged or moves out. Maintaining a written record, updated as needed, of any significant changes, any illnesses that resulted in medical attention, changes in the method of medication administration, or other changes that resulted in the provision of additional services. During the survey, the surveyor reviewed a sampling of 18 residents’ records, and interviewed several facility employees. The allegations regarding resident care supervision were related to Resident No. 16 and Resident No. 17. During the survey on September 9, 2015, Ms. Linder interviewed Employee A and documented in the Statement of Deficiencies that the employee stated that “Resident No. 16 had wandered from the facility about five months ago and the police returned him to the facility.” Based on Employee A’s statement, it was determined that Resident No. 16 engaged in elopement approximately five months prior to Petitioner assuming ownership of the facility. Ms. Lindner documented the elopement of Resident No. 16 as a deficiency, even though Petitioner was not the owner of the facility at that time. When asked whether AHCA is seeking to hold Petitioner responsible for the purported elopement of Resident No. 16, AHCA’s field office manager, Mr. Dickson, stated, “I don’t believe so.” The evidence presented at hearing demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. The surveyor also interviewed Employee F on September 9, 2015. During the interview, Employee F told the surveyor that Resident No. 17 had left the facility without notifying staff. Specifically, Dixie Lodge maintained a “Report Book,” which included documentation of incidents during each shift. In the book, the staff documented that on September 3, 2015, they had not seen Resident No. 17 on the property for the entire day. The staff then documented their efforts to locate Resident No. 17. Staff documented that they called the hospital and the local jail to determine the location of Resident No. 17. After these calls, the staff contacted law enforcement and law enforcement returned Resident No. 17 to the facility. Based on the evidence of record, there was sufficient evidence to demonstrate that the Dixie Lodge staff had a general awareness of the whereabouts of Resident No. 17. A review of the Report Book revealed that Resident No. 17 had also eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. At that time, the timeline for a one-day adverse incident had not expired. The surveyor interviewed the then administrator for Dixie Lodge and she disclosed that the facility does not have contact information for next of kin or a case manager for Resident No. 17. Even if the administrator had the contact information, Dixie Lodge would not be required to contact them (regarding the elopement), unless the resident was discharged or had moved out. Here, Resident No. 17 had eloped but returned to the facility. Tag A0032: Elopement Standards Elopement is when a resident leaves a facility without following facility policies and procedures and without the knowledge of facility staff. The elopement standards are described in rule 58A- 5.0182(8), which provides as follows: (8) ELOPEMENT STANDARDS Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. As part of its resident elopement response policies and procedures, the facility must make, at a minimum, a daily effort to determine that at risk residents have identification on their persons that includes their name and the facility’s name, address, and telephone number. Staff attention must be directed towards residents assessed at high risk for elopement, with special attention given to those with Alzheimer’s disease or related disorders assessed at high risk. At a minimum, the facility must have a photo identification of at risk residents on file that is accessible to all facility staff and law enforcement as necessary. The facility’s file must contain the resident’s photo identification within 10 days of admission or within 10 days of being assessed at risk for elopement subsequent to admission. The photo identification may be provided by the facility, the resident, or the resident’s representative. Facility Resident Elopement Response Policies and Procedures. The facility must develop detailed written policies and procedures for responding to a resident elopement. At a minimum, the policies and procedures must provide for: An immediate search of the facility and premises, The identification of staff responsible for implementing each part of the elopement response policies and procedures, including specific duties and responsibilities, The identification of staff responsible for contacting law enforcement, the resident’s family, guardian, health care surrogate, and case manager if the resident is not located pursuant to subparagraph (8)(b)1.; and, The continued care of all residents within the facility in the event of an elopement. AHCA alleged that Dixie Lodge failed to follow its elopement policies and procedures for Resident Nos. 16 and 17. The Statement of Deficiencies also alleged that Dixie Lodge failed to ensure that at least two elopement drills per year had been conducted with all staff at the facility. Regarding Resident No. 16, evidence of record demonstrates that Petitioner was not responsible for the facility at the time Resident No. 16 eloped from the facility and, thus, was not responsible for elopement of Resident No. 16. Although the elopement occurred before Petitioner assumed ownership of the facility, Resident No. 16 was designated as being at risk for elopement. As such, the facility was required to have photo identification (ID) on file for the Resident. Investigation by the AHCA surveyor revealed that there was a photo on file but that it was of such poor quality that the photo was not readily recognizable. The surveyor did not provide further description of the photo. Dixie Lodge’s owner, Jeff Yuzefpolsky, testified that because Resident No. 16 had been incarcerated, his picture would be immediately accessible, if needed, from the Department of Corrections’ inmate database, and that Mr. Yuzefpolsky was familiar with accessing such photographs. While there was testimony offered regarding the photo, the photo was not offered into evidence. Based on the evidence in the record, the undersigned finds there was not sufficient evidence to demonstrate that Dixie Lodge failed to maintain a photo ID for Resident No. 16. Regarding Resident No. 17, Dixie Lodge had an elopement policies and procedure manual and the staff followed their policies and procedures as it relates to Resident No. 17. Regarding the elopement drills, Ms. Walker discovered documentation of two elopement drills. While the drills did not include record of the staff who participated, there is not a requirement for such in the elopement standards. Dixie Lodge met the requirement by completing the drills and maintaining documentation of the drills. The undersigned finds that the citation for deficiency Tag A0032, a Class II deficiency, was not supported by the evidence in the record. Tag A0165: Risk Management-Adverse Incident Report AHCA also alleged that Dixie Lodge failed to prepare and file adverse incident reports. Each ALF is required to file adverse incident reports as set forth in section 429.23, which, in pertinent part, provides: Every facility licensed under this part may, as part of its administrative functions, voluntarily establish a risk management and quality assurance program, the purpose of which is to assess resident care practices, facility incident reports, deficiencies cited by the agency, adverse incident reports, and resident grievances and develop plans of action to correct and respond quickly to identify quality differences. Every facility licensed under this part is required to maintain adverse incident reports. For purposes of this section, the term, “adverse incident” means: An event over which facility personnel could exercise control rather than as a result of the resident’s condition and results in: Death; Brain or spinal damage; Permanent disfigurement; Fracture or dislocation of bones or joints; Any condition that required medical attention to which the resident has not given his or her consent, including failure to honor advanced directives; Any condition that requires the transfer of the resident from the facility to a unit providing more acute care due to the incident rather than the resident’s condition before the incident; or An event that is reported to law enforcement or its personnel for investigation; or Resident elopement, if the elopement places the resident at risk of harm or injury. Licensed facilities shall provide within 1 business day after the occurrence of an adverse incident, by electronic mail, facsimile, or United States mail, a preliminary report to the agency on all adverse incidents specified under this section. The report must include information regarding the identity of the affected resident, the type of adverse incident, and the status of the facility’s investigation of the incident. Licensed facilities shall provide within 15 days, by electronic mail, facsimile, or United States mail, a full report to the agency on all adverse incidents specified in this section. The report must include the results of the facility’s investigation into the adverse incident. Rule 58A-5.0241 identifies the requirements for filing adverse incident reports as follows: INITIAL ADVERSE INCIDENT REPORT. The preliminary adverse incident report required by Section 429.23(3), F.S., must be submitted within 1 business day after the incident pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. FULL ADVERSE INCIDENT REPORT. For each adverse incident reported in subsection (1) above, the facility must submit a full report within 15 days of the incident. The full report must be submitted pursuant to Rule 59A-35.110, F.A.C., which requires online reporting. AHCA alleged that Dixie Lodge was required to file an adverse incident report for elopement incidents involving Resident Nos. 16 and 17 and an injury related to Resident No. 3. During the survey, the surveyor observed Resident No. 3 with a one-inch laceration above his left eye that was covered in dried blood. On September 9, 2015, at 12:14 p.m., the surveyor conducted an interview of Employee A. The surveyor asked the assistant administrator about the laceration on Resident No. 3’s eye. The assistant administrator responded that she learned of the injury at 10:30 a.m. AHCA took issue with the lack of an adverse incident report. However, the timeframe for preparing and filing a report had not expired. Thus, AHCA did not demonstrate by clear and convincing evidence the alleged deficiency for failure to file an adverse incident report regarding Resident No. 3. As referenced above, the adverse incident requirements related to Resident No. 16 should not be imputed to Petitioner, as Petitioner was not the owner of Dixie Lodge at the time of the incident that would trigger the compliance requirement. At the time of the survey, approximately five days after Resident No. 17 eloped, there was no documentation that a one-day adverse incident report had been filed. The elopement required a one-day adverse incident report because Resident No. 17 eloped and the incident involved law enforcement. Thus, a citation for failure to complete an adverse incident report for the September 3, 2015, elopement incident involving Resident No. 17, a Class II violation, is supported by clear and convincing evidence. A review of the Report Book also revealed that Resident No. 17 had eloped from the facility on September 8, 2015, and had not been found at the time of the survey on September 9, 2015, at 3:30 p.m. Although Resident No. 17 had eloped, the timeline for a one-day adverse incident report had not expired. Thus, the Class II citation for failing to file a one-day adverse incident report for the September 8, 2015, elopement incident involving Resident No. 17 incident was not supported by the evidence. Allegations Regarding Class III Deficiencies In addition to the Class II deficiencies, the surveyor cited 18 Class III deficiencies in the following areas: (A0008) admissions-health assessment; (A0026) resident care- social and leisure activities; (A0029) resident care-nursing services; (A0030) resident care-rights and facility procedures; (A0052) medication-assistance with self-administration; (A0054) medication-records; (A0056) medication-labeling and orders; (A0076) do not resuscitate orders; (A0077) staffing standards-administrators; (A0078) staffing standards-staff; (A0081) training-staff in-service; (A0082) training-HIV/AIDS; (A0083) training-first aid and CPR; (A0090) training-do not resuscitate orders; (A0093) food service-dietary standards; (A0160) records-facility; (A0161) records-staff; and (A0167) resident contracts. Section 400.23(8)(c) provides in part: “A citation for a class III deficiency must specify the time within which the deficiency is required to be corrected. If a class III deficiency is corrected within the time specified, a civil penalty may not be imposed.” Section 408.811(4) provides that a deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency. Section 408.811(5) provides: “The agency may require an applicant or licensee to submit a plan of correction for deficiencies. If required, the plan of correction must be filed with the agency within 10 calendar days after notification unless an alternative timeframe is required.” On September 17, 2015, AHCA sent Dixie Lodge a Directed Plan of Correction (“DPOC”). However, the DPOC was not offered at hearing. There was testimony regarding the content of the DPOC, but that testimony alone, without corroborating admissible evidence, is not sufficient to support a finding of fact regarding Petitioner’s failure to comply with the DPOC. The Findings of Fact below are made regarding the Class III deficiencies alleged in subsection 2, paragraph 1, of the Seconded Amended NOID. Tag A0008: Admission-Health Assessment AHCA alleged that Dixie Lodge failed to ensure that it obtained and maintained complete health assessments for Dixie Lodge residents. Specifically, the Amended NOID alleged that the files for two residents were missing health assessments. The first resident, Resident No. 16, allegedly had been re-admitted after a seven-month absence from the facility without an updated health assessment. While the readmission and the initial timeframe for updating the health assessment expired before Petitioner took possession of the property, the facility was responsible for updating the records so information is available for the facility to determine the appropriateness of the resident’s continuous stay in the facility. There is clear and convincing evidence to demonstrate that Dixie Lodge violated Tag A008 and that it indirectly or potentially poses a risk to patients. Tag A0026: Resident Care-Social and Leisure Activities AHCA alleged that Dixie Lodge failed to ensure that residents were provided a minimum weekly number of hours of leisure and social activities. The logbook reflected there were no activities offered during the month of September 2015. There is sufficient evidence to demonstrate that Dixie Lodge failed to provide a minimum weekly number of hours of leisure and social activities. Dixie Lodge’s failure to provide leisure and social activities constitutes an indirect or potential risk to residents. Tag A0029: Resident Care-Nursing Services AHCA alleged that Dixie Lodge failed to ensure that it provided nursing services as required for resident care by permitting a certified nursing assistant to change wound dressings instead of a nurse. The certified nursing assistant did not testify, nor did the administrator. Therefore, there was no admissible evidence to support the allegation. Tag A0030: Resident Care-Rights and Facility Procedures AHCA alleged Dixie Lodge failed to ensure residents’ rights were addressed. Specifically, it is alleged that residents had grievances regarding not being paid for gardening labor performed, and Dixie Lodge’s then administrator acknowledged those grievances. In addition, a resident reported a grievance regarding the resident’s roommate. The administrator acknowledged the grievances and admitted the grievances were not documented. As a result, Dixie failed to ensure residents’ rights were implemented. Tag A0052: Medication-Assistance/Self-Administration AHCA alleged that Dixie Lodge failed to ensure that it provided assistance with self-administration of medications for residents. Specifically, Dixie Lodge failed to assist a resident with self-administration of Depakene (an anti-seizure medication). The resident self-administered two doses of the medication without assistance. As a result, Dixie Lodge failed to meet the parameters for self-administration. Tag A0054: Medication-Records AHCA alleged that Dixie Lodge failed to maintain accurate and up-to-date medication observation records for residents receiving assistance with self-administration of medications by failing to properly document medication administration. The medication administration records were not offered at hearing. However, the surveyor testified about her observations while conducting the survey. Dixie Lodge did not dispute her testimony. Thus, the evidence was clear and convincing that Dixie Lodge failed to maintain accurate and up- to-date medication observation records related to administration of anti-psychotic medications. Tag A0056: Medication-Labeling and Orders AHCA alleged that Dixie Lodge failed to ensure that it complied with requirements to take reasonable steps to timely re-fill medication prescriptions for residents. It was further alleged that Dixie Lodge had not scheduled a face-to-face visit for a patient as required to obtain a prescription refill. However, there were no records offered at hearing to support the allegations. The surveyor’s testimony was based on an interview she conducted with a resident and her review of medical records, which was not corroborated by any admissible evidence. There is no clear and convincing admissible evidence in the record to support the violation. Tag A0076: Do Not Resuscitate Orders AHCA alleged that Dixie Lodge failed to develop and implement a policy and procedure related to “Do Not Resuscitate Orders (“DNRs).” The AHCA surveyor relied upon statements made during an interview by phone of Dixie Lodge employees. The employees interviewed did not testify at hearing. The testimony presented by the surveyor was based on uncorroborated hearsay, which could not be relied upon for a finding of fact. Tag A0077: Regarding Staffing Standards-Administrators The surveyor noted that the administrator of record failed to provide adequate supervision over the facility by failing to notify the Agency of an adverse incident report for three of the patients sampled (i.e., Resident Nos. 3, 16, and 17). The facts of the incidents are set forth above. Regarding Resident No. 3, the evidence offered at hearing was sufficient to demonstrate that the deficiency found was appropriate. Regarding Resident No. 16, Petitioner was not the owner of the facility at the time of the resident’s elopement and, thus, Petitioner is not responsible for the incident that occurred prior to it assuming ownership of the facility. Regarding Resident No. 17, the evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. On November 6, 2015, the Agency conducted a follow-up survey wherein the surveyor cited an uncorrected deficiency regarding Tag A0077. No evidence was offered at hearing to refute the allegation that the deficiency was not corrected. Thus, the Class III uncorrected deficiency citation was appropriate. The evidence offered at hearing was sufficient to demonstrate that the cited deficiency was appropriate. Tag A0078: Staffing Standards-Staff AHCA alleged that Dixie Lodge failed to ensure within 30 days that it had obtained and maintained in the personnel file of each direct health care provider, verification that the staff member was free from communicable disease. The surveyor testified that she reviewed the records for two staff members and discovered there was no documentation in the personnel file of the staff members to demonstrate compliance with the communicable disease-testing requirement. The evidence presented at hearing supports a violation for the allegations related to Tag A0078, which is an indirect risk to residents. Tag A0081: Training-Staff In-Service AHCA alleged that Dixie Lodge failed to ensure that staff members completed required in-service training programs, including training related to HIV and AIDS. An employee’s file contained a roster of staff members who completed a training course in HIV and AIDS. Although the roster was not dated and did not include a certificate of completion, there was evidence to demonstrate that the employee had completed the training. Based on the evidence presented at hearing, there was no clear and convincing evidence that Petitioner failed to provide HIV and AIDS training to staff. Tag A0082: Training-HIV/AIDS AHCA alleged that Dixie Lodge failed to ensure that a staff member had completed a required HIV/AIDS course within 30 days of employment. Specifically, the personnel file for Employee B included a training roster which reflected that she received the training. The surveyor noted that there was no date on the roster and no certificate of completion. The evidence of record demonstrates that Employee B completed the training. Regarding maintaining documentation, the roster was not offered into evidence to determine whether the requisite information was included on the roster. In addition, Petitioner had not assumed ownership of the facility during the timeframe that the training was required and, thus, there was not sufficient evidence presented at hearing to demonstrate that Petitioner is responsible for the alleged deficiency. Tag A0083: Training-First Aid and CPR AHCA alleged that Dixie Lodge failed to ensure that a staff member who had completed courses in First Aid and Cardiopulmonary Resuscitation (“CPR”) was in the facility at all times. The allegation was supported by the record. The failure to ensure at least one staff member on each shift is trained in First Aid and CPR presents an indirect or potential risk to patients. Tag A0090: Training-Do Not Resuscitate Orders (DNRs) AHCA alleged that Dixie Lodge failed to ensure that staff members timely completed a required training course in DNRs. The surveyor’s review of the personnel files of employees A, B, and C revealed that the files did not include sufficient documentation to demonstrate that the three employees completed required training in DNRs. Employees A and C had certificates indicating that they completed the training, but the certificates did not include the duration of the course. Employee B’s file did not include a certificate indicating she completed the training within 30 days, as required. Based on the evidence offered at the final hearing, there is sufficient clear and convincing evidence to support the citation for Tag 0090. Tag A0093: Food Service-Dietary Standards AHCA alleged that Dixie Lodge failed to maintain a three-day supply of food in case of an emergency. Specifically, the surveyor observed that three proteins had expired. The failure to ensure sufficient resident nutrition is an indirect risk to residents. There was clear and convincing evidence to prove the cited deficiency. Tag A0160: Records-Facility AHCA alleged that Dixie Lodge failed to maintain facility records for admission and discharge. Specifically, a review of the facility’s admission and discharge log incorrectly reflected that 80 residents resided in the facility. It was discovered that the discharge log had not been updated to reflect that five residents no longer resided in the facility. The evidence supports the citation for a deficiency for failure to properly maintain the discharge log. Tag A0161: Records-Staff AHCA alleged that Dixie Lodge failed to maintain personnel records with required documentation. Specifically, the Statement of Deficiencies alleges that the personnel files of four Dixie Lodge employees did not include documentation of required trainings. The surveyor reviewed personnel files for the employees. Employees A, B, and C did not include documentation of first aid or CPR training. Employee D’s file did not include updated Level 2 eligibility records. Failure to maintain proper and complete personnel files for employees does not pose an indirect risk to residents so as to constitute a class III violation. Tag A0167: Resident Contracts AHCA alleged that Dixie Lodge failed to provide 30 days’ notice prior to an increase in resident rates for services. The surveyor reviewed the records of two residents and discovered that the two residents received notice of the rate increase less than 30 days before they were implemented. However, the rate increase occurred prior to Dixie Lodge assuming ownership of the facility. Thus, Petitioner was not responsible for the rate increase notice and therefore, there was not sufficient evidence to support the deficiency. Impact on Residents Petitioner seeks to maintain operation of the facility so as not to prevent a negative impact on residents. Marifrances Gullo, RN-C, MSN, FNP-BC, is the owner of Advanced Practical Nursing Services, a behavioral health and addictions management practice. She was accepted as an expert in the field of psychiatric mental health nursing, and testified about the lack of availability of appropriate placements for Dixie Lodge residents should Dixie Lodge be closed. Nurse Gullo provides mental health services to facilities such as Dixie Lodge. She testified that the dislocation of Dixie Lodge residents would likely lead to extremely detrimental effects on many residents. Edward Kornuszko, PsyD, was accepted as an expert in the provision of psychiatric and mental health services. Dr. Kornuszko has more than five years of experience seeking residential placements for patients similarly situated to those at Dixie Lodge. He testified that the task of placing up to 77 chronically ill Dixie Lodge residents at once would be “nearly impossible.” If placements were found for residents who had been at Dixie Lodge for at least 5 to 10 years, he would expect to see “considerable decompensation” in these residents. Ultimate Findings of Fact AHCA demonstrated by clear and convincing evidence that the cited deficiencies were appropriate for Tag A0165, a Class II deficiency. There was also clear and convincing evidence to demonstrate that the cited deficiencies were appropriate for the following Class III deficiencies: Tag A0008, Tag A0026, Tag A0030, Tag A0052, Tag A0054, Tag A0077, Tag A0078, Tag A0083, Tag A0090, and Tag A0093. Dixie Lodge demonstrated a potential negative impact on residents should Dixie Lodge close its doors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Administration, enter a final order rescinding its Amended Notice of Intent to Deny Change of Ownership Application. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 10th day of May, 2018.
The Issue Whether Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with his dwelling based on his handicap, and whether Respondent refused to make reasonable accommodations in its rules, policies, practices, or services necessary to afford Petitioner equal opportunity to use and enjoy a dwelling in violation of the Florida Fair Housing Act, chapter 760, Part II, Florida Statutes.
Findings Of Fact Petitioner is a homeowner in the Royal Highlands community in Leesburg, Florida, and has been a member of the RHPOA since moving into his home in April 2001.1/ From September 2010, through February 2011, Petitioner served on the RHPOA Board of Directors. Respondent is a property owners? association, membership in which is limited to property owners in the Royal Highlands residential community in Leesburg, Florida. There are 1,499 homes in the Royal Highlands community. The community is divided into twelve “districts.” Respondent?s Board of Directors (Board) consists of one representative from each of the twelve districts. Meetings of the Board are held monthly, except for August when community activities are typically sparsely attended. Leland Management is a community association management company that provides management services to the RHPOA along with other community associations. Petitioner alleged that he suffers from a disability because he walks with the use of a cane, and that his ability to speak is impaired as a lingering effect of a 2004 neck surgery that involved insertion of an endotracheal tube during and immediately after the procedure. During the month of February 2011, Petitioner was running for reelection to the RHPOA Board of Directors. On the day of the election, and prior to the vote of the membership, Petitioner appeared at the RHPOA meeting to make a final statement and thank his supporters. He walked to the front of the community meeting room, known as the Great Hall, but did not want to take the steps up to the elevated stage for fear that he might lose his balance and fall off. Petitioner was given a microphone and he thanked his supporters from the base of the stage. Afterwards, he walked back to his seat. Petitioner was not reelected to the Board, but continued to attend meetings as a member of the RHPOA. A monthly meeting of the RHPOA was held on July 13, 2011. The agenda included four items, including an item that would authorize the Board of Directors to retain legal counsel in the event a threatened lawsuit was filed against Bob Fitzpatrick, who was then the president of the RHPOA. The nature of the potential lawsuit was not in evidence, except that it involved a complaint filed with the Lake County Sheriff by Petitioner against Mr. Fitzpatrick. Mr. Fitzpatrick recused himself from the vote, since any legal fees would be expended on his behalf as president. John Banahan, then the vice-president of the RHPOA, acted as chair during the consideration and vote on the agenda item. The RHPOA allows members to speak regarding any issue on the agenda. Members must sign a “Sign-Up Sheet to Speak to Agenda Item” for each item on which they wish to be heard. Members are allowed three minutes to speak on each issue for which they have signed up. The minutes regarding a particular agenda item typically reflect only whether a motion was made, who seconded the motion, who voted, and the results of the vote. When there is a significant amount of discussion, the minutes may, as did the minutes for the legal counsel agenda item of the July 13, 2011 meeting, include something no more detailed than “[m]uch discussion, residents and Board Members.” Neither the comments of property owners nor the discussions of the Board members as to an agenda item are recorded in the minutes of meetings of the RHPOA. When Petitioner was on the Board, he would routinely take notes at meetings, and then destroy the notes after the meeting was concluded. That was consistent with the practice described by other testifying members of the Board. Petitioner attended the July 13, 2011 meeting of the RHPOA with his wife. He entered the meeting room on his own power and without difficulty, though he used a cane, signed up at the door to speak on the agenda item regarding the Board?s proposal to retain legal counsel, and took a seat at one of the tables. Petitioner made no request for assistance of any kind at the time he signed up to speak. Stacey Peach attended the July 13, 2012 meeting as a representative of Leland Management. Ms. Peach periodically attends meetings of the various associations served by Leland Management. Her attendance at the July 13, 2012 RHPOA meeting was coincidental. Ms. Peach was seated at a table in front of Petitioner. When it was his turn to speak on the legal counsel agenda item, Petitioner was recognized by Mr. Banahan. Petitioner announced, without assistance of a microphone, that he could not go to the podium. Mr. Banahan noted “confusion” in the audience, but did not realize what was going on with regard to Petitioner?s request to speak on the agenda item, though he understood that Petitioner was unable to come to the podium at the front of the room. Mr. Banahan testified convincingly that he had no problem with Petitioner speaking from his seat. He was aware of at least two other instances in which a microphone was taken to an attendee of a Board meeting so as to allow them to speak while seated, one of which occurred when he was a member of the Board. Ms. Peach heard Petitioner state that he was not able to go to the podium to offer his comments. She thereupon got a portable microphone and handed it to Petitioner. Petitioner asked Ms. Peach if she would speak on his behalf. Petitioner had not spoken with Ms. Peach earlier, and his request caught her off guard. Not knowing what Petitioner wanted her to say, she declined to speak for him. Her refusal was based on surprise and uncertainty, and not on any discriminatory motive. After Ms. Peach declined to speak on Petitioner?s behalf, Petitioner took the microphone provided to him, and offered his comments on the agenda item from his seat. Petitioner testified that as long as the microphone was working, he saw no reason why he would not have been heard. Except for Ms. Hoffman, whose testimony is discussed below, the witnesses who were asked indicated they had no problem hearing what Petitioner had to say, though none could remember the substance. Petitioner testified that he made a specific request of Mr. Banahan to allow someone to speak on his behalf, and that Mr. Banahan refused the request. Petitioner?s testimony was contradicted by Ms. Peach, who was directly involved in the incident; Mr. Norden, who was seated next to Petitioner; Mr. Reichel, who attended the meeting as a Board member; and Mr. Banahan. The greater weight of the evidence establishes that no request for another person to speak on Petitioner?s behalf was made to any member of the Board, and that the only such request was made, without prior notice, to Ms. Peach. Petitioner?s claim that his request was denied by Mr. Banahan was supported only by the testimony of Ms. Hoffman. However, Ms. Hoffman?s testimony was undermined by the fact that her overall account of the incident differed in several significant and material respects from the testimony of other witnesses, including that of Petitioner. For example, Ms. Hoffman indicated that Ms. Peach was not asked to speak for Petitioner, that Petitioner asked someone seated next to him to speak, that Petitioner had difficulty reading his notes, that Petitioner was unable to complete his comments, and that Petitioner?s speech was, at best, marginal. Whether Ms. Hoffman?s description of events was the result of a poor vantage point or of poor memory, it is not credited. Mr. Banahan testified that if Petitioner had been unable to speak, he would have allowed someone to read a statement on his behalf.2/ However, Mr. Banahan testified that he was not asked to make such an accommodation, and that Petitioner was able to comment on the agenda item from his seat. Mr. Banahan?s testimony is credible and is accepted. Mr. Banahan testified that he has known Petitioner from his service as a member of the Board and never perceived him as having a handicap. Mr. Banahan knew that Petitioner walked with a cane. However, Mr. Banahan?s wife walks with a cane and he does not consider her to have a handicap. Petitioner provided Respondent with no medical records, letters from his physicians, or competent evidence of any kind to establish that he had a disability or that he required an accommodation in order to participate in the July 13, 2011 meeting, nor did he produce any such evidence at the hearing. At the hearing, based upon the undersigned's observation, Petitioner had little or no difficulty walking or speaking. Petitioner failed to prove that he has a physical impairment that substantially limits one or more major life activities, or that he was regarded by any director or member of the RHPOA as having any such physical impairment. To the contrary, the greater weight of the evidence demonstrates that Petitioner does not suffer from a handicap as defined in the Fair Housing Act. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing that Petitioner suffered from a handicap that hindered his ability to actively participate in the July 13, 2011 RHPOA meeting. There was no competent, substantial evidence adduced at the hearing that Respondent knew of any alleged handicap or regarded Petitioner as being handicapped. There was no competent, substantial evidence adduced at the hearing that Respondent failed to reasonably accommodate Petitioner when he asserted that he would not be able to walk to the podium. The evidence adduced at the hearing established that Petitioner made no direct request to any member of the RHPOA Board of Directors to allow someone to speak on his behalf. The evidence adduced at the hearing established that Petitioner was able to clearly state his comments on the legal representation agenda item by using the portable microphone provided to him by Ms. Peach. The evidence did not establish that Petitioner was the subject of unlawful discrimination in the provision of services or facilities in connection with his dwelling based on his handicap, or that Respondent refused to make reasonable accommodations in its rules, policies, practices or services necessary to afford Petitioner equal opportunity to use and enjoy his dwelling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief filed in FCHR No. 2012H0158. DONE AND ENTERED this 18th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 18th day of October, 2012.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner because of handicap in violation of the Florida Fair Housing Act.
Findings Of Fact At all relevant times, Petitioner Shelley M. Wright ("Wright") was a graduate student at Florida International University ("FIU") in Miami, Florida. Wright has a physical disability that affects her mobility, and, as a result, she uses a wheelchair or scooter to get around. There is no dispute that Wright falls within a class of persons protected against discrimination under the Florida Fair Housing Act ("FFHA"). Respondent Servitas Management Group, LLC ("SMG"), manages Bayview Student Living ("Bayview"), a privately owned student housing community located on FIU's campus. Bayview's owner, NCCD — Biscayne Properties, LLC, leases (from FIU) the real estate on which the project is situated. Bayview is a recently built apartment complex, which first opened its doors to students for the 2016-2017 school year. On November 20, 2015, Wright submitted a rental application for a single occupancy efficiency apartment in Bayview, fitted out for residents with disabilities. She was charged an application fee of $100.00, as were all applicants, plus a "convenience fee" of $6.45. Much later, Wright would request that SMG refund the application fee, and SMG would deny her request, although it would give her a credit of $6.45 to erase the convenience fee on the grounds that it had been charged in error. Wright complains that this transaction was tainted with unlawful discrimination, but there is no evidence of such, and thus the fees will not be discussed further. Wright's application was approved, and, accordingly, she soon executed a Student Housing Lease Contract ("First Lease") for a term commencing on August 20, 2016, and ending on July 31, 2017. The First Lease stated that her rent would be $1,153.00 per month, and that the total rent for the lease term would be $12,683.00. Because Wright was one of the first students to sign a lease, she won some incentives, namely $500.00 in Visa gift cards and an iPad Pro. The First Lease provided that she would receive a $200.00 gift card upon lease execution and the balance of $300.00 upon moving in. As it happened, Wright did not receive the gift cards in two installments, but instead accepted five cards worth $500.00, in the aggregate, on August 20, 2016. There were two reasons for this. One was that SMG required lease holders to appear in-person to take possession of the gift cards and sign a receipt acknowledging delivery. Wright was unable (or unwilling) to travel to SMG's office until she moved to Miami in August 2016 to attend FIU. The other was that SMG decided not to use gift cards as the means of paying this particular incentive after integrating its rent collection operation with FIU's student accounts. Instead, SMG would issue a credit to the lease holders' student accounts in the amount of $500.00. Wright, however, insisted upon the gift cards, and so she was given them rather than the $500.00 credit. Wright has alleged that the untimely (or inconvenient) delivery of the gift cards constituted unlawful discrimination, but the evidence fails to sustain the allegation, which merits no further discussion. In May 2016, SMG asked Wright (and all other Bayview lease holders) to sign an amended lease. The revised lease made several changes that SMG called "improvements," most of which stemmed from SMG's entering into a closer working relationship with FIU. (One such change was the aforementioned substitution of a $500.00 credit for gift cards.) The amended lease, however, specified that Wright's total rent for the term would be $13,836.00——an increase of $1,153.00 over the amount stated in the First Lease. The explanation was that, in the First Lease, the total rent had been calculated by multiplying the monthly installment ($1,153.00) by 11, which did not account for the 12 days in August 2016 included in the lease term. SMG claimed that the intent all along had been to charge 12 monthly installments of $1,153.00 without proration (even though the tenant would not have possession of the premises for a full 12 months) and thus that the First Lease had erroneously shown the total rent as $12,683.00. As SMG saw it, the revised lease simply fixed this mistake. Wright executed the amended lease on or about May 10, 2016 (the "Second Lease"). Wright alleges that this rent "increase" was the product of unlawful discrimination, retaliation, or both. There is, however, no persuasive evidence supporting this allegation. The same rental amount was charged to all occupants of the efficiency apartments, regardless of their disabilities or lack thereof, and each of them signed the same amended lease document that Wright executed. To be sure, Wright had reason to be upset about SMG's revision of the total rent amount, which was not an improvement from her standpoint, and perhaps she had (or has) legal or equitable remedies available for breach of lease. But this administrative proceeding is not the forum for redressing such wrongs (if any). Relatedly, some tenants received a rent reduction through the amended leases SMG presented in May 2016, because the rates were reduced therein for two- and four-bedroom apartments. As was made clear at the time, however, rates were not reduced on the one-bedroom studios due to their popularity. Wright alleges that she subsequently requested an "accommodation" in the form of a rent reduction, which she argues was necessary because she leased a more expensive studio apartment, not by choice, but of necessity (since only the one- bedroom unit met her needs in light of her disabilities). This claim fails because allowing Wright to pay less for her apartment than every other tenant is charged for the same type of apartment would amount to preferential treatment, which the law does not require. Wright makes two claims of alleged discrimination that, unlike her other charges, are facially plausible. She asserts that the handicapped parking spaces at Bayview are unreasonably far away for her, given her limited mobility. She further asserts that the main entrance doors (and others in the building) do not afford two-way automatic entry, and that as a result, she has difficulty exiting through these doors. The undersigned believes it is possible, even likely, that the refusal to offer Wright a reasonable and necessary accommodation with regard to the alleged parking situation, her problems with ingress and egress, or both, if properly requested, might afford grounds for relief under the FFHA. The shortcoming in Wright's current case is the absence of persuasive proof that she ever presented an actual request for such an accommodation, explaining the necessity thereof, for SMG's consideration. There is evidence suggesting that Wright complained about the parking and the doors, perhaps even to SMG employees, but a gripe, without more, is not equivalent to a request for reasonable accommodation. Determinations of Ultimate Fact There is no persuasive evidence that any of SMG's decisions concerning, or actions affecting, Wright, directly or indirectly, were motivated in any way by discriminatory animus directed toward Wright. There is no persuasive evidence that SMG denied a request of Wright's for a reasonable accommodation at Bayview. In sum, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination could be made. Ultimately, therefore, it is determined that SMG did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding SMG not liable for housing discrimination and awarding Wright no relief. DONE AND ENTERED this 27th day of September, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 27th day of September, 2017.
The Issue The issues in this case are whether Respondents unlawfully discriminated against Petitioners on the basis of race, or retaliated against them for exercising a protected right, or both, in violation of the Florida Fair Housing Act.
Findings Of Fact Because no evidence was admitted into the record at the final hearing, the undersigned cannot make any findings of fact. § 120.57(1)(j), Fla. Stat. (“Findings of fact shall be based … exclusively on the evidence of record and on matters officially recognized.”).
Recommendation Based on the foregoing Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondents not liable for housing discrimination and awarding Petitioners no relief. DONE AND ENTERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 27th day of October, 2020. COPIES FURNISHED: Antonio Carraway Whang Carraway 1406 Southwest Osprey Cove Port St. Lucie, Florida 34986 (eServed) Jillian Sidisky, Esquire Stefanie S. Copelow, Esquire Cole, Scott & Kissane, P.A. 222 Lakeview Avenue, Suite 120 West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioners full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes (2011).1/
Findings Of Fact Parties and Jurisdiction Petitioners are African Americans who reside in the State of Ohio, who visited Orlando, Florida, in June 2011 and stayed at Lake Eve Resort beginning on June 21, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Each Petitioner filed a Complaint of Discrimination with the Commission as follows: Jessica Austin – July 20, 2012 Denise Austin – July 21, 2012 Tracie Austin – January 18, 2013 (Amended Complaint)2/ Bonlydia Jones – July 11, 2012 James Austin – July 31, 2012 Dionne Harrington – August 1, 2012 Esther Hall – January 28, 2013 (Amended Complaint)3/ Boniris McNeal – March 27, 2013 Summer McNeal – March 27, 2013 Derek McNeal – March 27, 2013 In each Complaint, the Petitioner alleges that the most recent date of discrimination is June 22, 2011. On June 21, 2012, Petitioners Esther Hall, Summer McNeal, Boniris McNeal, Derek McNeal, and Dionne Harrington, each filed a Technical Assistance Questionnaire (TAQ) with the Commission. Each TAQ is signed by the named Petitioner, is stamped received by the Commission on June 21, 2012, and contains the specific facts alleged to be an act of discrimination in the provision of public accommodation by Respondent. Allegations of Discrimination On or about May 23, 2011, Petitioner, Boniris McNeal, entered into a Standard Group Contract with Lake Eve Resort (the Resort) to reserve 15 Resort rooms for five nights at a discounted group rate beginning June 21, 2011.4/ The rooms were to accommodate approximately 55 members of her extended family on the occasion of the Boss/Williams/Harris family reunion. Petitioners traveled from Ohio to Orlando via charter bus, arriving at the Resort on the evening of June 21, 2011. Erika Bell, a relative of Petitioners, drove a rental car from Ohio to Orlando. She did not arrive in Orlando until June 22, 2011. Petitioners checked in to the Resort without incident. However, one family member, John Harris, was informed that the three-bedroom suite he had reserved for his family was not available due to a mistake in reservations. He was offered two two-bedroom suites to accommodate his family. Petitioner, Boniris McNeal, dined off-property on the evening of June 21, 2011, to celebrate her wedding anniversary. Petitioner, Bonlydia Jones, left the Resort property shortly after check-in to shop for groceries. Petitioners, Dionne Harrington and Esther Hall, were very tired after the long bus trip and went to bed early on June 21, 2011. Petitioner, Denise Austin, arrived in Orlando with the family on June 21, 2011. On the morning of June 22, 2011, Ms. Jones received a call from Mr. Harris, informing her that the Resort management wanted to speak with them about his room. That morning, Ms. Jones and Mr. Harris met with two members of Resort management, Amanda Simon and Marie Silbe. Mr. Harris was informed that he needed to change rooms to a three-bedroom suite, the accommodation he had reserved, which had become available. Mr. Harris disputed that he had to change rooms and argued that he was told at check-in the prior evening he would not have to move from the two two-bedroom suites he was offered when his preferred three-bedroom suite was not available. After some discussion, it was agreed that Mr. Harris would move his family to an available three-bedroom suite. The Resort provided an employee to assist with the move. Following the meeting with management, Ms. Jones went to the pool, along with Ms. Harrington and other members of the family. After a period of time which was not established at hearing, Mary Hall, one of Ms. Harrington’s relatives, came to the pool and informed Ms. Harrington that the family was being evicted from the Resort. Ms. Harrington left the pool and entered the lobby, where she observed police officers and members of Resort management. She approached a member of management and was informed that she and her family were being evicted from the Resort and must be off the property within an hour. Ms. Harrington left the lobby and returned to her room, where her mother, Ms. Hall was sleeping. Ms. Harrington informed Ms. Hall that the family was being evicted from the Resort and instructed Ms. Hall to pack her belongings. Ms. Jones’ cousin, Denise Strickland, came to the pool and informed her that the family was being evicted from the Resort. Ms. Jones entered the lobby where she was approached by a member of management, who introduced herself as the general manager and informed her that the family was being evicted. Ms. Jones requested a reason, but was informed by a police officer that the owners did not have to give a reason. In the lobby, Ms. Jones observed that an African- American male was stopped by police and asked whether he was with the Boss/Williams/Harris reunion. He was not a family member. Ms. Jones observed that no Caucasian guests were approached in the lobby by management or the police. Ms. Austin was on a trolley to lunch off-property on June 22, 2011, when she received a call from her cousin, Ms. Strickland. Ms. Strickland informed Ms. Austin that the family was being evicted from the Resort and she needed to return to pack her things. Ms. Austin returned to the property, where she was escorted to her room by a security guard and asked to pack her belongings. Ms. McNeal was en route to rent a car and buy groceries on June 22, 2011, when she received a call from Ms. Strickland informing her that the family was being evicted and that she needed to return to the Resort to pack her belongings. Upon her arrival at the Resort, Ms. McNeal entered the lobby. There, she was approached by Resort staff, asked whether she was with the Boss/Williams/Harris reunion, and informed that the Resort could not honor the reservations and the family was being evicted. Ms. McNeal observed that Caucasian guests entering the lobby were not approached by either the police or Resort management. Ms. McNeal was escorted to her room by both a police officer and a member of management and instructed to be out of the room within 30 minutes. Ms. McNeal inquired why they were being evicted, but was told by a police officer that the Resort was not required to give a reason. Erika Bell received a call from her mother, Ms. Austin, while en route to the Resort on June 22, 2011. Ms. Austin informed Ms. Bell that the family was being evicted from the Resort and asked her to call the Resort and cancel her reservation. Respondent gave no reason for evicting Petitioners from the property. Respondent refunded Petitioners’ money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioners Jessica Austin, Denise Austin, Tracie Austin, James Austin, Bonlydia Jones, Esther Hall, Boniris McNeal, Derek McNeal, Summer McNeal, and Dionne Harrington; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 28th day of May, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2014.
The Issue Whether Respondent, Eve Management, Inc./KA and KM Development, Inc., denied Petitioner full and equal enjoyment of the goods and services offered at its place of public accommodation, in violation of sections 509.092 and 760.08, Florida Statutes.1/
Findings Of Fact Parties and Jurisdiction Petitioner is an African-American female who resides in the State of Missouri, who visited Orlando, Florida, in June 2011, and who had a reservation for accommodations at Lake Eve Resort beginning on June 24, 2011. Respondent, Eve Management, Inc./KA and KM Development, Inc., was the owner of Lake Eve Resort, located at 12388 International Drive, Orlando, Florida, at all times relevant hereto. Petitioner arrived in Orlando on June 17, 2011, where she stayed at the Hilton Grand International Resort (Hilton Grand) with her immediate family. Her reservation at the Hilton Grand ended on June 24, 2011, when she had reservations at the Lake Eve Resort (Resort) to join her extended family on the occasion of the Boss-Williams family reunion. On June 22, 2011, Petitioner traveled to the Resort to visit with her extended family who had arrived the previous day. When Petitioner entered the lobby of the Resort, she was met by two police officers and two women who did not immediately identify themselves. One of the police officers asked her if she was with the Boss-Williams family reunion. Petitioner inquired why she was being asked if she was with the family reunion, and was told that her party was being evicted. One of the two women with the officers, later identified as Lisa Catena, a Resort manager, asked Petitioner her name, and instructed her staff to cancel Petitioner’s reservation. Thereafter, Petitioner made several calls to members of her extended family to inform them of this turn of events. She first called her sister, Boniris McNeal, who was not on-property at the time, informed her of the eviction, and told her to return to the Resort. Next, Petitioner called her cousin, Denise Austin, who was also off-property at the time, informed her of the eviction, and told her to return to the Resort. Petitioner spent the next several hours in the lobby of the Resort talking with various family members as they returned to the Resort, or came through the lobby from other parts of the Resort, and were told they were being evicted, and waiting with family members while Resort staff worked to reverse credit-card charges and refund monies paid for room reservations. During this time period, Petitioner observed the two police officers, Ms. Catena, and the other unidentified woman, as they approached each African-American person who entered the lobby and asked whether they were with the Boss-Williams reunion. Petitioner observed that the police officers and Resort managers did not stop any non-African-American persons. Petitioner contacted a Westgate resort property in Orlando and was able to secure rooms for the family members who were evicted from the Resort. Respondent provided Petitioner no reason for canceling her Resort reservation and evicting her family from the premises. Petitioner filed a Complaint of Discrimination with the Commission on January 3, 2014. The Complaint alleges that the most recent date of discrimination was June 22, 2011. In a related case, the undersigned has found that some members of Petitioner’s family timely filed complaints of discrimination related to and arising out of the same incidents as those alleged by Petitioner. See Harrington v. Eve Management, Inc., Case No. 14-0029 (Fla. DOAH May 28, 2014). The undersigned, sua sponte, officially recognizes the Recommended Order in that matter, pursuant to Florida Administrative Code Rule 28-106.213(6).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: Finding that Respondent, Eve Management, Inc./KA and KM Development, Inc., committed an act of public accommodation discrimination in violation of sections 509.092 and 760.08, Florida Statutes (2011), against Petitioner Denise Strickland; and Prohibiting any future acts of discrimination by Respondent. DONE AND ENTERED this 24th day of June, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of June, 2014.
The Issue Whether Respondent discriminated against Petitioners by evicting them from their apartment as alleged in the Petition for Relief filed by Petitioners.
Findings Of Fact At the times pertinent to this proceeding, Elizabeth Anne Skelton was the owner of a group of apartments in West Palm Beach, Florida, known as Bermuda Village In March and April 1994, Geoffrey K. Adams was a tenant of Bermuda Village on a month-to-month basis. The rent for one person living alone in one of the Bermuda Village apartments was $475.00 per month, while the rent for two people was $500.00 per month. These rents were consistently applied. Mr. Adams testified at the formal hearing that he was aware of the different rates, depending on whether there was one or two people living in the apartment.1 In March 1994, Mr. Adams planted a banana tree in the vicinity of the front door of his apartment. Because there was insufficient space for the banana tree, Ms. Skelton told Mr. Adams to remove it, which she had the right to do. Instead of removing the banana tree, Mr. Adams camouflaged the growing tree to make it appear to be a potted plant. When Ms. Skelton instructed her handyman to move what was thought to be a potted plant, it was discovered that the tree was still growing in the ground. Ms. Skelton then had the banana tree uprooted. Mr. Adams got into a verbal confrontation with Ms. Skelton over this matter and loudly cursed her in profane terms. He later made threatening statements and gestures to her. Ms. Skelton consulted her lawyers, who began the process to evict Mr. Adams. During this same period of time, Lillamae Adams (known then as Lillamae Jordan) moved in with Mr. Adams. Mrs. Adams is black. Mr. Adams and Ms. Skelton are white. When Mr. Adams informed the management of Bermuda Village that Mrs. Adams would be moving in to his apartment, he was informed that his rent would be increased by $25.00 per month. This increase was unrelated to the race of Mrs. Adams. In early April, 1994, approximately two weeks after Mrs. Adams moved in with Mr. Adams, Mr. Adams was served with eviction papers. Petitioners were subsequently evicted from their apartment. The eviction of Petitioners was based on the behavior of Mr. Adams. The eviction was not based on the race of Mrs. Adams.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997
