The Issue Whether Respondent is liable to Petitioner for public accommodation discrimination based on Petitioner’s handicap, in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Petitioner, Eric Wendell Holloman, is a 60-year-old man who resides in Jacksonville, Florida, and has been diagnosed with arthritis, diabetes, and high blood pressure. Respondent, Lee Wesley Restaurants, LLC, is the owner and operator of the Burger King restaurant located at 210 East State Street in Jacksonville, Florida. The corporate headquarters are located at 6817 Southpoint Parkway, Suite 2101, Jacksonville, Florida 32216. At all times relevant hereto, Respondent employed more than 15 employees. Petitioner has a driver’s license, but he asserted that he does not know how to drive a car. Petitioner’s primary method of transportation is his bicycle. Petitioner eats at a number of fast-food restaurants in the area of State Street in Jacksonville. Petitioner testified that he can’t cook because he doesn’t have a wife. Petitioner administers his own insulin to treat his diabetes and takes medication for high blood pressure. Petitioner uses a walking cane which was provided to him by the local Veteran’s Administration where he receives medical care. Petitioner’s cane is metal with four “legs” extending outward from the bottom of the upright metal post. Each leg is capped with a rubber “foot.” The cane will stand up on its own when not in use. Petitioner recounts the following events in support of his claim of public accommodation discrimination: On June 4, 2013, Petitioner entered the Burger King in question, ordered a meal with a drink, and took it to a table in the dining area where he proceeded to eat. At some point while he was dining, Petitioner accidentally knocked over his drink with his cane, which he testified was on the table with his food. Petitioner testified that no employee of the restaurant spoke to Petitioner about the spill, offered to help him clean it up, or otherwise acknowledged that he spilled his drink. Petitioner did not clean up the spill either. Petitioner helped himself to a drink refill and left the restaurant without incident. The following day, June 5, 2013, he entered the same restaurant and attempted to order a meal. According to Petitioner, he was told by an employee that he must leave and he would not be served at that restaurant. Petitioner identified Randall Gibson, the man seated with Respondent’s Qualified Representative at the final hearing, as the employee that asked him to leave the restaurant on June 5, 2013. Petitioner exited the restaurant via the rear door, which he testified was close to the flag pole where he had parked his bicycle. According to Petitioner, two Burger King employees followed him outside and threatened him with “bodily harm” if he returned to the restaurant. Petitioner was clearly upset with Mr. Gibson and other employees of the Burger King. Petitioner explained that on June 4, 2013, when Petitioner ordered his food at the counter, Mr. Gibson and a female employee were engaged in behavior he found offensive. Specifically, Petitioner testified that Mr. Gibson was “up behind” the female employee engaging in hip and pelvic gyrations. Petitioner twice stood up from his chair and demonstrated the hip and pelvic gyrations to the undersigned. Petitioner testified that he has at least 50 cases pending in state and federal courts alleging civil rights violations. The final hearing was one and one-half hours in duration. Only a small portion of the hearing time was devoted to presentation of evidence relevant to Petitioner’s claim of discrimination based on a disability. During his testimony, Petitioner often strayed into lengthy tirades against racial discrimination, quoting from the United States Constitution, as well as the writings of Dr. Martin Luther King, Jr., and other leaders of the Civil Rights Movement. The undersigned had to frequently reign in Petitioner’s testimony to relevant events.
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 by Eric Wendell Holloman in FCHR No. 2013-02160. DONE AND ENTERED this 28th day of July, 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 July, 2014.
The Issue Whether Respondent engaged in an unlawful discriminatory housing practice against Petitioner on the basis of her disability.
Findings Of Fact At all times relevant hereto, Petitioner, Joan Vassar, was an individual participant in a tenant-based voucher arrangement under the Section 8 Housing Program funded by the Department of Housing and Urban Development and administered by the Tallahassee Housing Authority (THA). Petitioner was a resident of The Lakes at San Marcos (The Lakes), an apartment complex located at 4768 Woodville Highway in Tallahassee, Florida. Respondent, CMP CHP San Marcos Ltd. (San Marcos), is the owner of The Lakes, which is managed by a company known as HSI. Petitioner has been diagnosed with fibromyalgia and has suffered multiple strokes. Petitioner is disabled for purposes of the Fair Housing Act. Beginning in August 2009, Petitioner rented apartment 1533 at The Lakes, a one-bedroom apartment on the third floor of building 15. Petitioner’s rent was paid directly to San Marcos by THA pursuant to Petitioner’s one-bedroom housing choice voucher. Petitioner had difficulty climbing the stairs to her third-floor apartment and often took breaks at each landing to rest. There was no elevator at The Lakes as an alternative means of accessing the third floor of building 15. By all accounts, Petitioner’s tenancy at The Lakes was peaceful and without incident. In 2011, Valarie Gosier-Coleman became the assistant manager of The Lakes. Petitioner described Ms. Gosier-Coleman as compassionate toward her. Ms. Gosier-Coleman occasionally disposed of Petitioner’s garbage for her and retrieved Petitioner’s mail. In May 2014, Petitioner reported to Ms. Gosier-Coleman that her health had declined, that she would need a live-in caregiver, and that she wished to move to a two-bedroom, first-floor apartment. On June 4, 2014, in response to Petitioner’s request, Respondent informed Petitioner in writing that two two-bedroom, first-floor apartments--1311 and 1413--would become available beginning August 1, 2014. Apartment 1413 was located in the building next to Petitioner’s existing apartment, and Petitioner indicated she would accept that apartment. HSI requires all occupants of an apartment to complete an application and be approved to rent. Petitioner brought her would-be caregiver to The Lakes to apply for apartment 1413. However, the caregiver was reticent to complete the financial information section of the application. Although she took the incomplete application with her when she left the office, the caregiver never submitted a completed application for the apartment. Shortly thereafter, Petitioner was offered apartment 1116, a one-bedroom first-floor apartment. On July 16, 2014, Petitioner rejected that apartment, sight unseen, as “too far in the back of the complex.” On July 31, 2014, Petitioner renewed her lease for apartment 1533. At that time, she wrote to management, “I do not want a (2) bedroom apt. any place except where I specified for personal reasons. I have been here for 5 years and am very secure and familiar with my neighbors in my building . . . . Plus, my family lives in this same building on the first floor.”1/ No other first-floor apartments became available at The Lakes between August and October 2014. Shortly after renewing her lease, Petitioner informed HSI that she desired to leave The Lakes. Petitioner requested to break her lease, which Respondent allowed. Respondent refunded Petitioner’s deposit in full.
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 Complaint and Petition for Relief. DONE AND ENTERED this 22nd day of December, 2015, 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 22nd day of December, 2015.
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 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 The issues in this case are, one, whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged handicap in violation of the Florida Fair Housing Act; and, two, whether Respondent subjected Petitioner to acts of coercion or retaliation as a result of Petitioner's exercise, or attempted exercise, of a protected housing right.
Findings Of Fact Petitioner Maria Thornhill ("Thornhill") owns and lives in a unit in the Admiral Farragut Condominium Apartments. Respondent Admiral Farragut Condominium Association, Inc. ("AFCA"), manages the property of which Thornhill's condominium is a part. This case continues a dispute between Thornhill and AFCA which began in 1997, when Thornhill——without first securing AFCA's permission——installed three wooden steps leading from her rear balcony down to a patio located about 30 inches below. AFCA disapproved of the steps and directed Thornhill to remove them, which was done long ago. In the past, Thornhill has alleged, among other things, that AFCA and its individual directors unlawfully discriminated against her in denying her many requests to reinstall the steps, which she claims are needed as a reasonable accommodation for her handicap.2 Consequently, the parties have been pitted against each other for years in one legal proceeding after another, in various forums including DOAH. Thornhill has lost many battles in this protracted litigation——and consequently been ordered to pay tens of thousands of dollars in sanctions, court costs, and attorney's fees. Still, she presses on. In this case, Thornhill argues, as she has for more than a decade, that she needs to attach steps to her rear balcony because she is physically unable to traverse the 30 inches which separate the balcony from the ground and hence would be trapped if a fire were to block both of the unit's two doors to the outside. Not for the first time, Thornhill alleges here that AFCA discriminated against her on the basis of handicap when it denied her request(s), the most recent of which was made in January 2004, for approval of the steps. In addition to her claim involving the steps, Thornhill alleges that AFCA has discriminated or retaliated against her, in some unspecified way(s), in connection with a boat slip, which she is, evidently, "next in line" to rent, once the lease expires under which another unit owner currently enjoys the right to use the slip. Finally, Thornhill contends that, in its efforts to collect the various money judgments it has been awarded, AFCA has retaliated against her unlawfully. Determinations of Ultimate Fact With regard to the steps, Thornhill presented no evidence suggesting that such a modification is reasonable, nor any proof that installation of such steps is necessary to ameliorate the effects of her particular handicap. There is no evidence that any of AFCA's decisions concerning the boat slip were motivated in any way by discriminatory animus directed toward Thornhill. There is likewise no evidence that AFCA ever undertook to execute or otherwise enforce the judgments it has obtained against Thornhill because of discriminatory animus. In sum, there is not a shred of competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of any sort of unlawful housing discrimination, coercion, or retaliation could possibly be made. Ultimately, therefore, it is determined that AFCA did not commit any prohibited act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AFCA not liable for housing discrimination and awarding Thornhill no relief. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2010.
The Issue Whether Petitioner has been the subject of discrimination in a public accommodation due to a disability.
Findings Of Fact Petitioner, Cari Anderson, is a veteran of the Iraq War and has Post Traumatic Stress Disorder (PTSD). Her PTSD is sufficiently severe so as to constitute a disability under Florida law. Because of her disability, Petitioner keeps with her two small poodle-type service dogs that help her remain calm. Petitioner also trains such service dogs. On April 5, 2009, Petitioner was visiting her friend, Michelle Clas-Williams, at her home in Panama City, Florida. During her visit at around 2:00 in the morning, Petitioner, along with her friend, and her friend’s daughter, decided to go shopping at the Wal-Mart store in Callaway, Florida. Petitioner brought along her two service animals to the Callaway Wal-Mart. Neither of the dogs wore any identification as service dogs; and therefore, could not be readily identified as such. Upon arrival, Petitioner and her friend obtained separate shopping carts. Petitioner placed her two dogs on the bottom of the shopping cart, on a towel. Petitioner and her shopping companions entered the main part of the store. No one from Wal-Mart stopped Petitioner from entering the store. Both she and her friend spent the next 20- 30 minutes shopping throughout the Callaway Wal-Mart store where surveillance cameras intermittently monitored their passage through the store. None of the surveillance footage has sound. As a consequence, the surveillance footage of Petitioner’s visit does not add support for either party’s version of the events in this case. During her time in the store, Petitioner walked freely throughout the aisles and was not prevented from shopping at the Callaway store. On at least two separate occasions, individual employees politely informed Petitioner that she could not have her dogs in the store. However, on each such occasion Petitioner explained to the employee that her dogs were service animals. The employees responded positively and Petitioner continued her shopping. There was no evidence that these employees communicated with Wal-Mart management. As Petitioner and her friend approached the checkout lines, the Customer Service Manager, Monica Amis, noticed Petitioner’s two dogs in her shopping cart. Ms. Amis walked up to Petitioner and said, “Ma’am those dogs cannot be in the store.” Before Ms. Amis could ask anything else, including whether the dogs were service animals, Petitioner erupted into a loud vocal tirade stating among other things, “You don’t tell me what the fuck to do. I can do what I want. I’m sick of Wal- Mart’s shit you think you own the world.” Ms. Amis could not get a word in and could not calm Petitioner down. Petitioner demanded the store manager be called and demanded that some papers which “proved” her dogs were service animals be looked at. Within minutes of first approaching Petitioner, Ms. Amis instructed the cashier to process Petitioner’s purchases. She then walked away and called the store manager. The better evidence did not demonstrate that Ms. Amis was rude or profane with Petitioner. The evidence did demonstrate that Ms. Amis’ actions in approaching and interacting with Petitioner were clearly reasonable and did not constitute discrimination against Petitioner. Shortly after Ms. Amis’ call, the store manager, Gary Wright, approached the front of the store. He could hear Petitioner yelling. He was very concerned about her behavior and the disturbance she was making. He approached her at the cash register. Mr. Wright asked Petitioner to calm down so he could speak with her. As she was paying for her items, Petitioner continued to yell loudly and use profanity. She was permitted to complete her transaction and no one from Wal-Mart interfered with her ability to do so. However, Petitioner remained belligerent, loud, and profane. Petitioner believed that her rights were being violated and that Ms. Amis and the manager could not tell her that her dogs could not accompany her in the store and if they inquired about them, they could only ask one specific question about whether her dogs were service dogs under an alleged agreement Wal-Mart recently entered into with the federal government. Petitioner’s beliefs about the meaning and scope of this alleged agreement, which was not introduced into evidence, is simply misplaced and does not establish any of the actions by either Ms. Amis or Mr. Wright as discriminatory acts. Like Ms. Amis, Mr. Wright could not get a word in. He understandably became exasperated with Petitioner and the conversation devolved with Mr. Wright telling Petitioner on at least two occasions to “shut up” and “shut the fuck up.” He also told her that he did not think poodles were service animals, but old-lady dogs. In the meantime, Petitioner was yelling about her papers and that Mr. Wright needed to look at them. Mr. Wright simply wanted Petitioner to leave the store. He also told her that he had no problems with the service dogs being in the store, but if she did not calm down, he would have to call the Bay County Sherriff’s office. Given Petitioner’s loud and irrational behavior it was reasonable for Mr. Wright to ask Petitioner to leave the store. When Mr. Wright informed Petitioner that he was calling the Sheriff’s office, Petitioner stated that she was glad they were coming. She wanted their assistance. Mr. Wright walked away and called the Sheriff’s office. There was no evidence that Mr. Wright made a false report to the Sheriff’s office. Additionally, Petitioner called 911 to confirm that an officer was en-route. Likewise, given Petitioner’s continued behavior and her assent to the call, it was reasonable for Mr. Wright to call the Sheriff’s office. Notably, the entire interaction between Petitioner, Ms. Amis, and Mr. Wright took less than 10 minutes. After completing her purchase, Petitioner remained at the checkout lane while her friend, who was in another checkout lane, paid for her merchandise. Petitioner continued yelling, using profanity, and causing a disturbance. Then Deputy, now Investigator, VanStrander arrived outside of Wal-Mart’s east entrance doors and was met by Mr. Wright. Mr. Wright informed Investigator VanStrander that Petitioner was making a scene and being very loud and disruptive. Indeed, Investigator VanStrander could hear Petitioner yelling while he was outside the store and she was inside the store. Mr. Wright did not ask the officer to arrest Petitioner. Once both Petitioner and her friend had completed their purchases, they began walking toward the exit, with Petitioner continuing to yell. Investigator VanStrander entered the store and was immediately approached by Petitioner who was screaming and “cussing like a sailor.” Investigator VanStrander instructed Petitioner that she needed to leave the store. He also informed her that she would be arrested if she did not comply. Petitioner did not immediately follow his instructions. Instead she attempted to argue her position and show the officer her papers. He again instructed her to leave and motioned to the door. He did not block the doorway as Petitioner claimed that he did. She again did not immediately comply and within seconds the officer arrested Petitioner. With little to no struggle she was handcuffed, placed into custody, and charged with disorderly conduct and resisting an officer without violence. Petitioner’s interaction with the deputy while in the store lasted less than 5 minutes. Importantly, the evidence clearly demonstrated that the decision to arrest Petitioner was made by Investigator VanStrander. Respondent was not responsible for the actions of the officer or for Petitioner's behavior which led to her arrest. Given these facts, the Petition for Relief should be dismissed.
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 Petitioner’s Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 1st day of November, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison Turci, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cari Anderson Post Office Box 371792 Las Vegas, Nevada 89137 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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)
