Findings Of Fact The Petitioner is the Division of Hotels and Restaurants of the Department of Professional Regulation. The Respondent is Thomas L. Burns. At all times pertinent to these proceedings, he was the operator of the Happy Acres Tavern and holder of public food service license number 15-00079R issued by Petitioner. Michele Cielukowski is a sanitation inspector with the Brevard County Health Department. On February 24, 1988, she inspected the premises of the Happy Acres Tavern. A septic tank and drain field are located immediately adjacent to the facility. Fifteen feet from the other side of the septic tank and drain field is a drainage ditch. She observed water standing in the drainage field and detected the presence of a strong malodor. Further inspection revealed the top soil above the drain field was saturated with water, the lid on the septic tank had been removed from the tank, and the tank's effluent contents were exposed to the open environment. The city water line serving the establishment runs across the top of the septic tank. The tavern's bar sink drain was disconnected from the septic tank, allowing waste water from that source to flow out on the ground. A type of vegetation, known as "dollar weed", grows profusely in the ditch and is a strong indicator that some effluent is leaching into the ditch. Plumbing in the women's rest room of the facility was sluggish and required a second attempt by the inspector before the toilet would flush. In the course of the inspection, Ms. Cielukowski took water samples from the standing water in the ditch and from a water faucet in the tavern. Upon analysis, the faucet water revealed the presence of fecal coliform which are organisms commonly associated with feces eliminated from the digestive tract of animal life. While the faucet water fecal coliform count was less than 10, the quantities of the organism found in the water samples taken from the ditch revealed a count of 1,000. Based on testimony of Richard G. Biondi, director of consumer health services in Brevard County, the finding is made that fecal coliform should not be present in any amount in the public drinking water supply in the tavern's locale. Since the water line to the tavern runs across the septic tank and surrounding saturated soil, there is a possibility of fecal coliform entering the water system in the event of a drop in the water pressure within the line. Dr. Manuel Garcia is the director of the Brevard County Health Service. After review of the results of the inspection of the Respondent's business, inclusive of the water analysis results, he ordered the tavern condemned to prevent a hazard to the public health. His decision was based upon the possibility of contamination of the public water supply by the sewage escaping from Respondent's establishment. In addition, the open septic tank and malfunctioning drain field increase the possibility of hepatitis, cholera, typhoid fever and other diseases. Diann Worzella is a sanitary supervisor with Brevard County. She visited the tavern premises on February 24 and March 1, 1988. The sewage disposal system comprised of the septic tank and drain field were in a serious state of malfunction. Her testimony corroborates that of Ms. Cielukowski with the additional observation that the tavern's sewage system is termed a "dead system." Within the parlance of sanitation experts, such a designation means the system cannot be restored and must be replaced. She noted that local county ordinances and state regulations require all businesses offering services to the public to have a properly functioning waste disposal system. Testimony by the Respondent confirmed a leak existed in the waterline pipe running across the septic tank and into the tavern. The Respondent maintains the leak has been repaired and topsoil above the drain field is now dry. He presented no evidence as to the manner in which the repair had been effected or that water purity in the faucet water had been restored. He also did not address whether the septic tank and its contents had been sealed from exposure, or if other noted plumbing deficiencies had been corrected. The plumbing difficulties and sewage disposal deficiencies existing at the Happy Acres Tavern constitutes an immediate danger to the public health sufficient to outweigh continued operation of the Respondent's licensed food service business. The Respondent's establishment does not have a properly plumbed and approved sewage disposal system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered: Continuing the emergency order of suspension of license number 15- 00079R until Respondent has corrected all deficiencies noted in the public health inspection conducted on February 24, 1988, including provision and maintenance of a properly plumbed and approved sewage disposal system for the facility known as Happy Acres Tavern, provided such suspension shall not exceed the maximum period of 12 months provided by section 509.261 (3), Florida Statutes. Finding the Respondent guilty of failing to maintain a safe water source and an approved sewage system as set forth in sub paragraphs 2a. and 2b. of paragraph number 2 in the Notice to Show Cause. DONE AND RECOMMENDED this 25th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. Petitioner Included in finding number 2. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 7. Included in finding number 7. Included in finding number 7. Included in finding number 7. Rejected as unnecessary. Included in finding number 3. Included in finding number 3. Included in findings 3 and 4. Rejected as unnecessary. Included in finding number 4. Included in finding number 5. Rejected as unnecessary. Unnecessary. Unnecessary. Included in finding number 6. Unnecessary. Included in finding number 8. Proposed findings of fact submitted by Petitioner in paragraphs numbered 22 through 28 are conclusions of law and are rejected as unnecessary.
The Issue The issues for determination in this case are: Whether the City of Altamonte Springs (City) violated Sections 760.10(1)(a), F.S., by discriminating against Albert Robinson (Robinson) on the basis of his race (Black) or his national origin (Jamaican), with respect to compensation, terms, conditions, or privileges of employment; Whether the City violated Section 760.10(7), F.S., by discriminating against Robinson in retaliation for his opposition to a practice which is an unlawful employment practice under this section or because he assisted or participated in any manner in an investigation, proceeding, or hearing under this section; and If such violations did occur, what relief is appropriate pursuant to Section 760.10(13), F.S.
Findings Of Fact Petitioner, Albert H. Robinson is a black male, over 18 years of age, born in Jamaica, West Indies. Respondent, the City of Altamonte Springs, is a municipal corporation organized and existing under the Laws of the State of Florida, and admits that it is an "employer" for purposes of the Human Rights Act of 1977, as amended, sections 760.01-760.10 F.S. Robinson's account of how he arrived in the United States approximately seven years ago is bizarre, but uncontroverted, and for purposes of this proceeding is deemed true. In Jamaica, Robinson had been affiliated with the ruling People's National Party. He held the government post of Development Director in the "New Development Agency" and was in charge of approximately 300 underprivileged persons. He was also president of a youth organization within the party, and was involved in organizing youth activities and selecting members to visit Cuba as a party representative. At some point he was approached by an American embassy attache from the CIA who recruited him to provide under-cover information on the party. When that involvement became publicly exposed, he was forced to flee the country. Robinson and his family lived for awhile in Panama and other Latin American countries. When they decided to emigrate to the United States, the U.S. Government made arrangements for Mrs. Robinson and the children to enter through Miami and for Mr. Robinson to cross the border "illegally" at Brownsville, Texas. He was given authorization to work and temporary asylum. He is currently awaiting disposition of his petition for a more permanent status. Through other relatives in Florida, Robinson ended up in Altamonte Springs. At the time that he was hired by the City in September 1984, Robinson presented a letter from the INS permitting him to work during the pendency of his asylum petition. The City was thus aware of his national origin and non- citizen status. Robinson was hired as a laborer in the city water distribution division on September 24, 1984. He received two personnel evaluations during his probationary period, both "average," with every factor rated "average," and few comments. On February 7, 1985, he was promoted from laborer to utility serviceworker, a more responsible position. The serviceworker is generally assisted at a job site by the laborer, who does most of the digging. The Dixon Personnel Board hearing In April 1985, Robinson assisted a black coworker, Patrick Dixon, at his hearing before the City Personnel Board. Dixon and another black utilities worker, Carl Wilder, had been accused of making obscene and inappropriate gestures to two white women while the men were on city duty. Wilder was given a one-day suspension. Dixon, who already had a negative performance record, was given a two-day suspension. Dixon appealed the discipline to the Personnel Board. Robinson's involvement at the hearing on April 3rd was to sit behind Dixon and assist with the documents. Robinson, who had no firsthand knowledge of the incidents, did not testify. Carl Wilder did testify on behalf of Dixon. The Personnel Board, in a unanimous decision by all members present, upheld the disciplinary action. Robinson believed that Patrick Dixon had been the victim of a racial vendetta. Dixon testified in this proceeding that he, also, feels that the charge was racially motivated, yet nothing in the written documents related to his appeal supports that contention. The basis for his appeal was the insufficiency of the evidence against him and his contention that he was a bystander while Wilder, the actual perpetrator, received a lesser penalty. Shortly after the hearing Dixon was terminated for absenteeism. He did not file a discrimination complaint nor take any other action against the city. Wilder is still employed by the city, and in 1987, was promoted from laborer to serviceworker. The performance evaluation On May 3, 1985, Robinson received his first performance evaluation as a utility serviceman. His overall rating by his reporting supervisor, George Simpkins, was "average." However, he received "below average" in four categories: "ability to carry out instructions/orders"; "conduct"; "directs the work of subordinates effectively"; and "ability to make decisions within his authority." The comments in explanation of these ratings related to Robinson's failure to follow operating procedures, his temper and conflict with fellow employees, and his dictatorial manner in dealing with subordinates. Robinson was not pleased with the evaluation and wrote a letter to the Assistant Director of Public Works, Ronald Howse, asking to discuss it. Howse suggested that the discussion take place with Larry Alewine and George Simpkins, who were the supervisors responsible for the evaluation. Alewine was Simpkins' immediate supervisor. The discussion took place. Robinson now claims that Larry Alewine asked him why he followed Patrick Dixon to City Hall and claims that Alewine blamed the evaluation on his involvement with Dixon. Alewine denies this and cannot recall any notoriety with regard to Robinson's association with Dixon. Not following procedures and problems with fellow employees Robinson's difficulties in working with others and in following procedures are well-documented throughout his 1985 and 1986 employment with the city. In June 1985, he received a notice of remedial action after placing a water meter in a location where the customer wanted it, rather than where he had been directed to place it. The customer was happy, but under the city's procedures, the serviceman does not have the authority on his own to change the supervisor's direction. On November 4, 1985, Robinson had an altercation with his supervisor, Larry Alewine, regarding a meeting that Robinson wanted with Chris Hill, the recently-appointed director of the city's water distribution division. Alewine attempted to convey Hill's directive that Robinson put his request in writing, but Robinson became loud, yelled at Alewine and started to leave. When Alewine attempted to call Robinson back to discuss the matter, Robinson retorted that he (Alewine) wasn't his daddy. Right after the incident Robinson apologized for getting loud and Alewine explained that he would still have to "write him up," because he had refused to come back in the building and was hollering. Robinson claims that the incident occurred prior to 7:30 A.M., when he was still on his own time, but this claim is unsupported by Alewine or any of the other several witnesses. On November 26, 1985, Robinson and Carl Wilder were at a job site trying to locate a buried water meter. Wilder, as the laborer, was doing the digging. Robinson, his superior, insisted that Wilder keep digging in a place where Wilder did not believe the meter was located. Both men's tempers flared and Wilder called the supervisor to the site to prevent further argument. Because it was near the end of the day, Robinson was excused and Wilder was taken back to the city garage. Chris Hill spoke with both Robinson and Wilder and determined that no disciplinary action was warranted. He told Wilder that if he had any complaints or grievances about Robinson, he would have to put them in writing. Chris Hill asked other employees if they had problems working with Robinson; he did not, as alleged by Robinson, solicit written statements against Robinson from other employees in the division. Chris Hill Most of Robinson's claims of discrimination by the city are directed toward Chris Hill, who, in October 1985, was placed in charge of the city's water distribution division. The City Manager, Philip Penland, was concerned about the management of the division. The Dixon/Wilder incident was an example. Larry Alewine and George Simpkins, both white Americans, were considered to be weak leaders. Robinson and Carl Wilder were identified as employees with whom there had been problems. Chris Hill started working for the City of Altamonte Springs in 1977 as temporary summer help and laborer. He gradually worked his way up through various levels of management and was highly regarded by his supervisors and by Philip Penland as a competent and capable employee, with a positive, "can-do" attitude. He was regarded as a tough manager who could obtain top performance from his employees. In addition to his duties at Altamonte Springs, he also is in charge of water plant operations in the neighboring towns of Eatonville and Maitland. Lack of tact and finesse in dealing with people, including subordinates, have been considered Hill's weak points. Hard times in the Water Distribution Division These characteristics and Hill's direction to shape up the division led to some tense months in the division. Larry Alewine, whose management style was certainly more relaxed, openly referred to Hill as "God" and "asshole." Alewine's position had been downgraded as a result of the reorganization, and he eventually left the city in 1987 after his position was eliminated from the budget. George Simpkins left a bitter resignation notice when he resigned in October, shortly after Chris Hill's appointment. In February 1986, Larry Alewine prepared an evaluation of Robinson which was reviewed, consistent with procedures, by Chris Hill. Hill did not believe the evaluation was strong enough, in light of his knowledge of the incident with Wilder and other minor problems with fellow employees. Both Hill and Scott Gilbertson, the Assistant Director of Public Works, met with Alewine and suggested that the evaluation should be changed. When Alewine declined, Chris Hill changed the evaluation. The evaluation, dated 3/6/86, rates Robinson overall as "Employee needs improvement." The written comments are very similar to those made by George Simpkins on the May 1985 evaluation; that is, the quality of his work was deemed generally good, but his conduct, ability to follow instructions, and ability to get along with fellow employees was noted as the real problems. While it is not apparent from the evaluation itself and the testimony in this proceeding how much of the evaluation was completed by Larry Alewine, it is clear that at least some of the negative written comments were made by him. (Respondent's exhibit #2.) The meeting with management officials and its aftermath Robinson wrote a protest of his evaluation which precipitated a meeting with himself, Chris Hill, Scott Gilbertson, Philip Penland, and the City Personnel Director, Sam Frazee. The evaluation was discussed; Robinson was told that his signing the evaluation only acknowledged its receipt and that he could provide his written notations on the back of the evaluation regarding portions with which he disagreed. The group also discussed an appointment Robinson had made with the city's worker's compensation physician. He had attempted to arrange his own follow-up visit for treatment of a work-related injury. The city's policy required that the appointments with the city's physician be made after notification to the supervisor. While explaining his actions, Robinson gave contradictory versions of what he had been told by the nurse in the doctor's office regarding the procedures. His testimony at hearing was also confused and inconsistent on this point. On direct, he testified that he had been told that authorization from the city is not necessary for follow-up visits. On rebuttal, however, he stated that the nurse had told him that the city personnel department would have to be notified, but not his foreman. (TR, Vol I, p. 77, Vol IV, p. 324-325). In the course of the same meeting, Robinson made allegations of wrongdoing by Larry Alewine, stating that Alewine had a meeting with his employees and encouraged them to write grievances against Chris Hill and had called Hill an "asshole" and "God." The City Manager considered these allegations to be serious and promised Robinson that an investigation would be made. The meeting then broke up. Ed Haven, an officer with the Professional Standards Bureau of the City Police Department was assigned to investigate the allegations of misconduct. This bureau normally conducts personnel-related internal affairs investigations and considers them administrative, not criminal. The investigation was initially inhibited by Robinson's refusal to answer Officer Haven's questions unless the investigation was expanded to include Chris Hill as well. Robinson was then ordered by the City Manager to participate. The inquiry sustained the allegations that Alewine had called Hill "asshole" and "God." This investigation spawned a second investigation as to whether Robinson had ever told another employee that he lied about Alewine in order to get an investigation against Chris Hill. The issue was never resolved, but Officer Haven found that a "preponderance of evidence indicates Robinson was untruthful during this investigation...," that Robinson did have a conversation with an employee, Barry Beavers, but denied it. (Petitioner's composite exhibit #1, Memorandum of Internal Inquiry #86-9998-03, April 15, 1986). The lead Utility serviceworker positions In Spring 1986, the city created two supervisor positions in the Water Distribution Division, titled "lead utility serviceworker," to supervise and oversee the work of the utility workers and their laborers. All three utility serviceworkers applied for the jobs: Robinson, Ronnie Oliver (Black American) and Barry Beavers (White American). Robinson was never considered a viable candidate and was interviewed as a matter of courtesy. Oliver and Beavers were chosen. Robinson concedes that Beavers was qualified and properly promoted, but he disputes Ronnie Oliver's qualifications. Ronnie Oliver began work one month after Robinson, in October 1984. He worked under Robinson as a laborer for some time and he freely acknowledges that Robinson taught him a lot. Oliver also had considerable personal initiative and taught himself with the use of materials he acquired from Larry Alewine. Oliver's performance evaluations were substantially better than Robinson's; by May 1986, the time of the promotion, he was evaluated as an "Outstanding" employee. Robinson had, in fact, been on the job less than Oliver, as he had sustained a work-related injury in December 1985, and was out for weeks at a time. He had not been cleared for full-time duty when he was interviewed and was absent from work when the positions were filled. Light duty Robinson alleges that he was given "make-work" light duty when he was returned to work after his injury, and was later denied light duty. The city furnishes injured employees with light duty on a case-by-case basis, depending on the capabilities and physical condition of the individual and the needs of the employer. Robinson was first assigned floor sweeping duties in June after his recurring back problems. Later he was given the task of painting an area near Hill's office. An assistant was assigned to paint the high and low portions of the wall. He was also given a chair to sit on and rest his back. This was the lightest duty available at the city at time. Other employees including a black who had cancer, were also given routine maintenance chores. While painting, Robinson injured his neck, shoulder and hands. He never returned to work after this injury in June 1986. The city informed him in July and August that it did not have light duty available. In September 1987, the City agreed to pay Robinson $47,000.00 (including $7,000.00 to his attorney), to settle his worker's compensation claim of permanent back injury. He has since applied for reemployment. As of the hearing in this proceeding, the city was reviewing his request for reemployment. This request is not at issue here. Various grievances In Spring 1986, as the result of some publicity about the arrest of illegal aliens, the city reviewed the work authorization status of its employees. Since Robinson had initially given the city a letter from INS stating that he was eligible to work pending an application for political asylum, he was asked again for authorization. He refused at first, and claimed this was harassment. He also claimed that he was subject to derision for being a CIA spy. He had told some fellow employees about his past and the news circulated. The employees mostly did not take the matter seriously, but in an employee meeting, someone asked Chris Hill whether it was true that Albert was a CIA spy. He replied that this was what Robinson claimed. At the same employees' meeting, Hill also stated that he did not think that Robinson was going to be around much longer. He made this remark based on his knowledge of Robinson's disciplinary problems. Hill was strongly reprimanded for this remark. He did not have the authority to terminate Robinson, and management had not taken steps to terminate him. Robinson has attributed various derogatory statements and epithets to Chris Hill. He claims that Hill said that no one would take the word of a "nigger" against him and that he didn't want Americans to take orders from a Jamaican. Hill vigorously denies these statements and no credible evidence was produced to support Robinson's claims. Nor was credible evidence presented of Robinson's claim that on July 3, 1986, Hill lost his temper and spat in his face. At hearing on November 2, 1987, Robinson, through his attorney, withdrew his allegation that he was defrauded of sick leave through a forged signature. (TR Vol IV, p. 293-294.) Summary of Findings Beyond his own unsubstantiated claim that Alewine told him so, there is no evidence that Robinson's problems with the city were the result of his rather inconspicuous involvement at the Patrick Dixon hearing. His problems clearly began when he was promoted to a position of some authority over others and his temper, loud mannerisms and difficulty working with others became an issue. Beginning with his response to his first slightly negative personnel evaluation, Robinson's reaction to every event in his employment, major and minor, was lengthy, rambling, confused and confusing written grievances, memoranda and letters. Robinson also carried a tape recorder to memorialize his encounters and (in his words) "...to intimidate people from molesting me..." (TR, Vol I, p. 243). Robinson's inconsistent accounting and mixing of facts in his scenario of alleged discrimination fail to make sense. Pressure was applied to blacks and whites, alike; of the four employees targeted as "problems," the two whites are gone (Alewine and Simpkins) and one black (Wilder) has been promoted. Evidence is clear that there were serious management problems in the city's Water Distribution Division in 1985, and the atmosphere which prevailed with reorganization of the division and Hill's arrival could very well have fueled Robinson's paranoia. His vehement protestations and repetitious and rambling litany of wrongs are either a sincere confused perception, or a deliberate attempt to manipulate a situation, which because of justifiable criticism of his job performance, was becoming increasingly uncomfortable. Nevertheless, his myriad allegations of discriminatory harassment, retaliation and of unlawful failure to promote, are unsupported by competent evidence.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Albert Robinson's charges that the City of Altamonte Springs violated subsections 760.10(1)(a) and (7), F.S., by harassment failure to promote, and retaliation, be DISMISSED. DONE and RECOMMENDED this 16th day of February, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2482 The following constitute my specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-5. Addressed in summary form in paragraph 3. Adopted in paragraphs 4. and 5. Addressed in paragraph 5. Adopted in part in paragraph 8. The account of discussion with Alewine is rejected as contrary to the weight of credible evidence. Adopted in part in paragraphs 6.-8., otherwise rejected as contrary to the weight of credible evidence. Adopted in paragraphs 6.-15. Addressed in paragraph 12. The characterization of Simpkins' motives and the mandate to fire the four employees are rejected as contrary to the weight of evidence. Addressed in paragraphs 15. and 16. Adopted in part in paragraph 18., otherwise rejected as unsupported by the weight of evidence or immaterial. 14-16. Rejected as contrary to the weight of evidence, except for the comment about Robinson being terminated. See paragraph 34. Rejected as cumulative, unnecessary and argumentative (rather than factual). Addressed in paragraph 14.; otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 13., otherwise rejected as contrary to the weight of evidence and unnecessary. Adopted in substance in paragraph 19. Addressed in paragraph 21. Rejected as contrary to the weight of evidence. Addressed in paragraph 21. Addressed in paragraph 22. Addressed in paragraph 25; otherwise rejected as unnecessary and unsupported by the competent evidence. Rejected as unnecessary. Addressed in paragraphs 33 and 34, otherwise rejected as contrary to the evidence. Addressed in paragraphs 26. through 28. Addressed in paragraphs 29. through 30. Rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 31. 34-35. Rejected as irrelevant. The "fraud" charge was withdrawn. See paragraph 36. 36-37. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. 6-12. Adopted in paragraphs 6. through 8. 13-15. Rejected as cumulative. 16-22. Addressed in paragraphs 15. and 16., otherwise rejected as unnecessary. 23. Adopted in paragraph 13. 24-27. Addressed in paragraph 14. 28-34. Addressed in paragraph 19. 35-38. Adopted in substance in paragraph 20. 39-40. Adopted in paragraph 21. Rejected as unnecessary. Adopted in paragraph 22. Adopted in paragraph 23. 44-49. Adopted in paragraphs 24. and 25. in substance. 50-60. Rejected as cumulative and unnecessary. 61-66. Addressed in paragraph 32. 67-69. Addressed in paragraph 33. 70-72. Addressed in paragraph 34. 73-89. Addressed in paragraphs 26.-28.; otherwise rejected as unnecessary. Adopted in substance in paragraph 35. Adopted in paragraph 28. Adopted in paragraph 29. 93-94. Adopted in substance in paragraph 29. 95-96. Adopted in substance in paragraph 30. Rejected as cumulative. Adopted in paragraph 30. 99-102. Adopted in substance in paragraph 31. 103-110. Rejected as irrelevant. The "fraud" charge was withdrawn at hearing. See paragraph 36. COPIES FURNISHED: Tobe Lev, Esquire Egan, Lev & Siwica, P. A. Post Office Box 2231 Orlando, Florida 32802 David V. Kornreich, Esquire Muller, Mintz, Kornreich, Caldwell, Casey, Crossland, & Bramnick, P. A. Suite 1525, Firstate Tower 255 South Orange Avenue Orlando, Florida 32801 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner is a special taxing district providing fire protection and rescue services to the residents of the Estero area of Lee County. The fire station is located at 20241 Tamiami Trail, Estero, Florida. Petitioner employs 14 employees, including administrative staff and firefighters. The firefighters work 24 hours straight and then are off-duty for 48 hours. Two to four employees work each shift. Firefighting requires a fast response. Thus, Petitioner requires that on-duty firefighters remain at the station for their entire 24-hour shift, unless they are out fighting fires or performing rescue duties. The fire station contains an 8' x 13' bedroom with six mattresses located on three bunk beds. On-duty firefighters are allowed to bring pillows and sheets so they can sleep at the station while on duty. There are no dressers in the room, which contains small lockers that the firefighters may use to store a change of clothes. Petitioner provides kitchen facilities at the fire station and well water. The well water is used for washing equipment, taking showers, and flushing the toilet. The well water is not used for any other purposes, nor is it used by any other persons. Petitioner provides bottled water for drinking and cooking. All of the firefighters have residences apart from the fire station and within a reasonable commuting distance from the fire station. No firefighter has ever lived at the station. Petitioner does not charge, or reduce the pay of, the firefighters for their use of the limited sleeping facilities. Petitioner lawfully does not treat the use of the limited sleeping facilities by firefighters as gross income for the purposes of withholding federal income tax or making social security contributions. By letter dated July 18, 1995, Respondent informed Petitioner that the fire station's water system is a limited use community water system because the sleeping facilities constituted rental residences, as defined by Rule 10D- 4.024(21), Florida Administrative Code. Respondent advised Petitioner that it was therefore required to obtain a permit. As noted in the following section, the statute authorizes Respondent to regulate as limited use community public water systems those systems serving a certain number of "rental residences." The statute does not define "rental residence." In Rule 10D-4.024(21), Respondent defines a "rental residence" as follows: a dwelling unit, a structure or part of a structure that is rented for use, or furnished with or without rent as an incident of employ- ment, for use as a home, residence, sleeping place by one or more persons, a mobile home rented by a tenant. This term does not apply to facilities offering transient residency such as public lodging establishments. This term includes other facilities where residency or detention is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services. Respondent equated a "rental residence" with a "dwelling unit" when it based its definition of "rental residence" on the statutory definition of "dwelling unit" in Chapter 83, Part II, Florida Statutes, which is the Florida Residential Landlord and Tenant Act. A "dwelling unit" is a "residence." The American Heritage dictionary defines a "dwelling" as "a place to live in; residence; abode." Similarly, the same dictionary's first definition of "residence" is "the place in which one lives; a dwelling; an abode." But the statutory definition qualifies "residential" with "rental." The word "rental" requires consideration of the nature of the relationship of the occupant to the dwelling and its owner. Obviously, the Florida Residential Landlord and Tenant Act addresses rental transactions, but it does not do so in the definition of "dwelling unit." Other provisions of the Act describe the kind of activity that must take place for a person to be considered a tenant renting a dwelling unit. Most importantly, Section 83.43(6) defines "rent" as "periodic payments due the landlord from the tenant for occupancy under a rental agreement " The facts of this case present a revealing illustration of the distinction between a "residence" or "dwelling unit," on the one hand, and a "rental residence," on the other hand. There is no rental relationship between the occupants of the sleeping quarters at the fire station and the residence or dwelling itself. The firefighters do not pay, directly or indirectly, for these beds or the rooms in which the beds are located. Their employer legitimately does not include the value of the use of these sleeping quarters in the compensation paid to the firefighters. The firefighters have residences within commuting distance of the fire station and use the meager sleeping quarters and kitchen facilities only because they are required to spend long hours continuously at the fire station.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing; the following facts relevant to the issue presented for determination are found: The prime complaint heard from petitioner's customers who testified at the hearing was the objectionable odor of the water received in their homes. The water was described as smelling like chlorine or like sewer, swamp or sulphur water. Such an objectionable odor affects the water's taste, and several customers testified that they were compelled to use filters to make the water bearable to drink. Another witness testified that the water tasted like quinine. Other complaints regarding the quality of water provided by petitioner to its customers included the presence of debris, such as sand, silt or dirt, in the water, the staining of white sinks by the water and inadequate water pressure. Complaints with regard to the service provided by petitioner to its customers were also voiced. These complaints included interruptions in water service without prior notice, the presence of air in the water lines and the necessity of making long-distance telephone calls to Orlando when inquiring about their bills. One customer testified that even though he had paid for a temporary disconnection of his water when he was away from his residence, he was still billed a minimum charge for service. Several customers testified that petitioner's office personnel failed to timely or adequately respond to their complaints or inquiries regarding their bills. Charles Sweat, the vice president of operations for petitioner's fifty- one systems in eight counties, visits each of the systems at least once a month. At the time that petitioner took over the operation of the Intercession City water system in 1977, the system was under citation by the Department of Environmental Regulation for inadequate chlorination of the water. The Department of Environmental Regulation does have a minimum requirement as to the amount of chlorine which must be added to the water. Petitioner corrected this deficiency and the citation was removed. Neither of the two water systems involved in this proceeding - Intercession City and Tropical Park - are presently under citation by any state or local regulatory agency. Analyses of monthly laboratory samples of water from the Intercession City and the Tropical Park systems indicate that the water quality will meet the Department of Environmental Regulation's secondary drinking water standards which went into effect on January 13, 1981. Petitioner now provides a toll-free telephone number which Osceola County customers may use to call Orlando. Notice of this toll-free number was included in the water bills sent to customers in September or October of 1980. A log is maintained by petitioner of all interruptions of water service. On one occasion occurring on March 3, 1980, there was a water outage. The outage was caused by low temperatures freezing the pressure switch at a time when it was at a high pressure level. When there was no pressure, the switch, being frozen, was incapable of sending an on-signal to the pump. It was necessary for petitioner to use torches to thaw out the pipes to make the system work properly. Cold weather sufficient to cause such an effect rarely occurs in Florida. On January 16, 1981, there was an interruption in service caused by the county cutting a water line. Another interruption of service occurred on January 18, 1981. This was caused by the malfunction of an air release valve which releases excess air from the pressure tank. Air was eventually caused to go into the distribution system and consequently into the homes of the customers. Petitioner's personnel have been instructed to watch this type of situation more carefully and more often. Petitioner's vice president of operations was not aware of recent complaints from customers concerning air problems, but testified that he would immediately and personally follow up on the problem.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the quality of water service provided by petitioner to its customers in Osceola County be found to be satisfactory and that no adverse consequences be imposed upon the petitioner in its application for a rate increase as a result of the quality of its service. Respectfully submitted and entered this 22nd day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1981. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 Lafayette Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4 - Holland Building Tallahassee, Florida 32301 M. Robert Christ Legal Department Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Steve Tribble, Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
Findings Of Fact Based upon the evidence produced at the final hearing and the entire record in this proceeding, the following findings of fact are made: Petitioner, Sylvia M. Shelly, is seventy four (74) years old. She is the owner of certain Property located at 1402 Vernon Avenue in Key West, Florida (the "Property"). Petitioner has lived on the Property for the last forty five (45) years. There are two (2) buildings on the Property. Petitioner rents out the building on the front portion of the Property and the top floor of the building on the back portion of the Property. Although the evidence is not clear as to when the buildings were constructed, both buildings are probably over a hundred years old. There are two (2) wells on the Property which were previously used to provide water for the dwellings. In approximately 1959, Petitioner had city water brought to the Property. The FKAA subsequently assumed responsibility for the water service. The FKAA is a state agency whose primary purpose is to provide an adequate supply of potable water to the Florida Keys. The FKAA has acquired or constructed well fields, treatment plants, transmission pipelines, pumping stations, distribution pipelines, and other related facilities necessary to supply water to the residents of the Florida Keys. See Chapter 76-441, Laws of Florida. There are currently three (3) separate FKAA water lines coming onto Petitioner's Property with three (3) separate meters. At the time the city water was brought to the Property, Petitioner claims the well-water was disconnected from the houses. Petitioner claims that since that time, only city (FKAA) water has been used in the houses. Both wells on the Property have piping going to the buildings which can not be easily traced. The pipes and plumbing systems for both buildings run underneath the buildings and are not color-coded to distinguish between potable water supplied by FKAA and the non-potable water from the wells. Such color coding is now required by the Standard Plumbing Code. Some of the pipes from the wells terminate at hose bibs located on the buildings in near proximity to hose bibs which are connected to the FKAA water supply. At some point, one of the wells was capped. The other well continues in operation and provides water for some of the outside spigots on the Property. Petitioner's well taps into the fresh water lens underlying Key West and produces water that does not meet the minimum standards required for potability. Petitioner uses the well to water her lawn, wash cars and shower after returning from daily swims in the ocean. Petitioner has utilized the outside well-water for such uses since she bought the Property in 1949. Petitioner claims she has been frugal with her use of water and showers outside most of the year. A Cross-Connection Control and Back-Flow Prevention Policy was adopted by the Board of Directors of FKAA at a regular Board meeting on October 17, 1986. This policy was initially adopted as Rule 48-2.013, and has subsequently been amended to Rule 48-2.016. The Rule was adopted pursuant to the provisions of Section 403.850 through 864, Florida Statutes. The Rule incorporates by reference the American Water Works Association ("AWWA") Manual M-14 entitled "Recommended Practice for Back-Flow Prevention and Cross-Connection Control." AWWA Manual M-14 Chapter 5.2 provides as follows: An approved back-flow-prevention assembly shall be installed at the service connection of the water purveyor to any premises where there is an auxiliary water supply or system, even though there is no connection between the auxiliary water supply and the public potable water system. NOTE: In order that the water purveyor may more clearly understand the meaning of the term auxiliary water supply it is necessary to define its meaning. The following discussion will help to clarify this phrase. The term auxiliary water supply (briefly defined in the Glossary) is commonly used to describe water supplies or sources not under the control or the direct supervision of the water purveyor. Typical of such water systems are natural water derived from wells, springs, streams, rivers, lakes, harbors, bays and oceans. Also considered an auxiliary water supply, other than the public potable water supply under the control of the water purveyor, are used waters that have passed beyond the water purveyor's control (at the point of delivery) and that may be stored, transmitted, or used in such a manner as to pollute or contaminate them. Finally, there may be public potable water supplies furnished by some other water purveyor that may or may not be under good sanitary control or may be otherwise unacceptable to the water purveyor. Subsection 5 of Rule 48-2.016 provides "any customer of the Authority who has a POTENTIAL for a cross-connection shall, at his own expense, install, operate, test and maintain an approved back-flow prevention assembly, as directed by the Authority. The Back-Flow prevention assembly shall be tested for effectiveness and reliability upon installation and yearly thereafter, with evidence thereof provided to the Authority." In approximately 1991, the FKAA determined that one of Petitioner's neighbors had a cross-connection between a well on that neighboring Property and the city water supply. At the same time, the authorities checked Petitioner's Property. Apparently, no cross-connection was discovered and Petitioner was told not to worry. On or about April 14, 1994, Petitioner received a request from the FKAA directing her to install a back-flow preventer on all three water lines. After several phone calls, an attorney representing Petitioner submitted a letter to FKAA arguing that Petitioner's well did not represent a hazard to the community water supply and Petitioner should not be required to install a back- flow preventer. On or about June 6, 1994, a water quality engineer for FKAA responded to the letter from counsel for Petitioner and explained that the "presence of potential cross-connection elements: hoses and hose bibs and piping that cannot be easily traced to her premises necessitate the elimination of the well or the installation of a reduced pressure back-flow preventer directly after each of the Petitioner's water meters." As noted in the Preliminary Statement, on or about August 1, 1994, Petitioner received a seventy two (72) hour shut off notice from FKAA. Counsel for Petitioner requested a hearing on the matter and this proceeding ensued. Petitioner has offered to eliminate any objectionable or concealed piping, but FKAA has rejected that offer. While there is no evidence of any current or past cross-connections between the wells on Petitioner's Property and the FKAA water supply, the evidence established that such a cross-connection could be made intentionally or inadvertently with a minimum amount of effort. Such cross-connection could result in a back-flow into Petitioner's plumbing system and subsequently into FKAA's water supply if the FKAA water pressure is low or if Petitioner's pump is operating at a higher pressure. While the chances of such a black-flow are relatively remote, the consequences could be extremely devastating. FKAA currently serves approximately 34,000 customers and there are over 2,000 reverse flow preventing devices that have been mandated to be installed and inspected pursuant to the FKAA cross-connection control and back- flow prevention program.
The Issue Whether the Respondent, the Department of Environmental Regulation (DER), should deny the Petitioner's application for a Class C drinking water treatment plant operator certificate based on the Petitioner's alleged cheating on the examination.
Findings Of Fact The Respondent, the Department of Environmental Regulation (DER), previously determined that the Petitioner, Ralph Sanchious (Sanchious), was eligible for certification as a Class C Water Treatment Operator, subject only to successful completion of DER's examination. Sanchious sat for the November 2, 1989, examination administered at the Polk Correctional Institution (PCI) in Polk City, Florida. Although the examination notice that had been mailed to Sanchious, as well as to the other examinees, stated that examinees were not allowed to have "[a]ny other papers or notes . . . in the examination room," Sanchious brought his examination notice itself and the envelope it came in. At least one other examinee did the same. During the examination, which was multiple choice, Sanchious copied the question numbers on the envelope and marked next to each question number the letter signifying the choice he had made as his answer. He did not try to hide what he was doing. He did it openly right in front of the examination proctor, Henry P. Ziegler, Jr. Sanchious intended to take the record of his exam answers with him when he left the examination to help him pass a reexamination, if he did not pass the November 2, 1989 exam. Since examinees must give the examination booklet containing the multiple choice questions to the proctor at the end of the examination, it is not clear how a record of his answers would help him pass a reexamination unless Sanchious knew or believed he could learn when the same examination would be re-administered. It must be inferred that Sanchious knew or believed he could learn when the same examination would be re-administered, although it is not clear how he knew or why he believed he could learn this. Ralph Nichols, the instructor who taught the course that prepared Sanchious to take the examination, did not know or believe he could learn when the same examination would be repeated unchanged, and he did not think any of the examinees knew or could learn this. Neither the DER rules, the written examination notice, nor the oral instructions of the examination proctor advised Sanchious or the other examinees that he was not permitted to record his answers or take the record of his answers with him when he left the exam. Sanchious did not think what he was doing was wrong, was cheating or was in violation of any rules or regulations of either the DER, PCI or any test-taking "conventions." If he did, he would have tried to hide what he was doing from the proctor. At the end of the examination, Ziegler, the proctor, collected the examination answer sheets, test booklets and scratch paper, if any, from all examinees. Normally, Ziegler would return the answer sheet and exam booklet to the testing agency and destroy the scratch papers to maintain test security. But he confiscated Sanchious' answer sheet, examination booklet and materials, including the record of his answers that he had made on the envelope, and asked Sanchious what was on the envelope. Sanchious answered truthfully and told Ziegler what he planned to do with his record of the answers. Ziegler, an accepted expert in proctoring examinations, understood from examination "conventions" he had learned as an examination proctor that it is a breach of examination security, and therefore forbidden for proctors to allow, an examinee to record examination answers and leave the examination site with them. Ziegler conferred with Barbara Jacobs, PCI Educational Program Manager, to ask her what she thought should be done. Jacobs then told Sanchious he would not be permitted to remove the envelope on which he had recorded his answers. Sanchious replied with words to effect "fine, I already finished the examination, and all my answers are on the answer sheets." Ziegler, Jacobs and Nichols conferred further to decide whether what Sanchious had done was "cheating." They decided it was and declined to forward Sanchious' answer sheet to DER. Ziegler's letter to DER explained that he and Jacobs "deem taking out answers to these tests to be a serious breach of test security, since it is possible that Sanchious might have wanted to sell the answers to other inmates on his compound. We are both sure that you would not want Sanchious to do this, so we have withdrawn his answer sheets from the rest of the test takers' sheets and are not forwarding Sanchious' answer sheet to you for scoring. We trust you agree with our decision to not allow this inmate's test to be scored due to what we firmly believe was an unacceptable breach of security of your tests on the part of Sanchious." Although the DER did not respond to Ziegler's letter, it denied his application certification because it did not consider Sanchious to have passed the exam. Sanchious' answer sheets remain in the possession of Barbara Jacobs at PCI. DER authorizes the use of scratch paper in their certification examinations. DER has no rules or written notification of any kind that examinees may not record their answers on scratch paper during the examination. In fact, DER now encourages examinees to keep track of where they are on the examination by marking the examination booklet; and marking the answers on the booklet, as well as the answer sheet, would be one acceptable way of keeping track. It is understood that the examination proctor will collect the exam booklets and all scratch paper. DER always has allowed examinees other than prison inmates, and now allows all examinees, to review their scored examination answer sheets and the examination booklet to verify any incorrect answers. Persons choosing such a review are not permitted to take notes of the correct answers with them after the review. On two occasions, DER has discovered that an examinee smuggled "crib sheets" (summary notes of substantive information that probably would assist an examinee) into the exam site. Once, the proctor caught the examinee; the other time, it could not be determined who had smuggled the "crib sheets." Once DER received anonymous information that an individual in Orlando regularly was obtaining a list of what purported to be the actual answers to questions and was furnishing the list to certain examinees as a favor. This information has not resulted in any findings, and it is not clear how the individual would have obtained a written list of correct answers to the questions on a particular examination. On the most recent examination in Jacksonville, DER caught an examinee smuggling into the examination a list of the actual answers to the questions. Again, it is not clear how the answers were obtained. None of these incidents involved an examination at PCI, and none involved an examinee recording his own answers to exam questions on a separate piece of paper with intent to leave with the record of the answers after the examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Regulation, enter a final order that the Petitioner's answers to the November 2, 1989, Class C Water Treatment examination be scored and, if the Petitioner scored a passing grade, that the Petitioner be certified as a Class C Water Treatment Plant Operator. RECOMMENDED this 7th day of March, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-7002 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Respondent's proposed findings of fact (the Petitioner not having filed any): 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven by the evidence. Ziegler first conferred with Nichols before deciding that Sanchious had "cheated." Otherwise, accepted and incorporated. Rejected as not proven by the evidence. It was not proven whether Sanchious knew or could learn when the same examination would be re- administered, knowledge that would be indispensable to the use of Sanchious' exam answers to cheat on a subsequent examination. Otherwise, accepted and incorporated. 6.-10. Accepted and incorporated to the extent not subordinate or unnecessary. 11. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, see 5., above. 12.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. Rejected as not proven by the evidence. First, Setchfield agreed that whether Sanchious or someone else knew or could learn when the same examination would be re-administered would be indispensable to the future use of his exam answers to improve one's odds of choosing or guessing correct answers. Second, she testified that she could not answer the "philosophical" question whether the "cheating" she described would have occurred when Sanchious recorded and removed the answers with the intent to try to use them to improve his odds of choosing or guessing correct answers on a future exam or when he actually used the information on a future examination. COPIES FURNISHED: Ralph Sanchious (W-44) Polk Correctional Institution 3876 Evans Road, Box 50 Polk City, Florida 33868 Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The letter assessing the fine, dated May 8, 1979, sets forth eleven (11) alleged violations. These violations fall into three (3) general categories. The first of these categories deals with the failure to prepare the required documentation for the admission of an individual and appropriate incident reports. The alleged violations recited in Paragraphs Numbers 1, 2, 3, 4, 7 and 10 are included in this category. The second category concerns the allegations that Natalie Tiltens and Fountain House failed to appropriately supervise individuals residing there. The allegations contained in Paragraphs Numbers 5, 6, 8 and 9 are included in this category. The third category concerns the failure to maintain appropriate staffing levels. The violations recited in Paragraphs Numbers 5 and 11 are included in this category.
Findings Of Fact Natalie Tiltens is the operator of Fountain House, an adult congregate living facility licensed and regulated by the Department of Health and Rehabilitative Services of the State of Florida. Gloria Gunter was placed at Fountain House by employees of the Department of Health and Rehabilitative Services. Ms. Gunter had previously been hospitalized at the State Hospital in Chattahoochee, Florida. After a preliminary visit at Fountain House, during which a decision was made by Ms. Tiltens, Ms. Gunter and the case worker that Ms. Gunter would be suitably placed at Fountain House. Ms. Gunter was transferred from the Florida State Hospital to Fountain House. Although medical information, personal information and past medical history had been requested by the Department's case worker from her counterpart at the State Hospital, these records were not forwarded with Ms. Gunter. Although a contract had been entered into between the Department of Health and Rehabilitative Services and Ms. Tiltens to pay Ms. Tiltens directly for the placement of Ms. Gunter, information was not available from the Department of Health and Rehabilitative Services upon which to complete the appropriate medical forms and personal information sheet and to prepare a contract for the services which Ms. Gunter would require. This information was not made available to the Department's case worker and Ms. Tiltens until after the death of Ms. Gunter. On the night of March 5, 1979, her first night as a resident of Fountain House, Ms. Gunter left the facility, went to a local bar and got drunk. The bar called Fountain House, having determined that Ms. Gunter was residing there, and requested that someone from Fountain House pick up Ms. Gunter, because she was rowdy and disturbing the other patrons. This call was received by Cecilia Blackman, another resident of Fountain House, who had been asked by Ms. Tiltens to take telephone calls while she was away from Fountain House for the evening. Ms. Blackman advised the caller from the Pine Tree Bar that if Ms. Gunter were rowdy it would be appropriate to call the police, and that no one was available to transport her back to Fountain House. Subsequent to this telephone call, Ms. Gunter arrived back at Fountain House. Shortly thereafter, Ms. Tiltens arrived and found Ms. Gunter extremely drunk, violent and combative. Although drinking was against the rules of Fountain House, Ms. Gunter had a bottle of whiskey with her which she refused to surrender to Ms. Tiltens. A scuffle occurred between Ms. Gunter, Ms. Tiltens and Mr. Ivy, another staff member, when Ms. Tiltens and Mr. Ivy attempted to take the bottle of whiskey away from Ms. Gunter. Although attempts were made to get Ms. Gunter to go to bed, she refused and eventually ended up in the yard outside Fountain House. While in the yard, Ms. Gunter disrobed and continued to be violent and combative toward Ms. Tiltens. In order to calm Ms. Gunter and subdue her violent and combative behavior, Ms. Tiltens turned a garden hose on her. Thereafter, Ms. Gunter returned to the interior of Fountain House and went to bed, and she remained there until the next morning. On the following morning, Ms. Tiltens held a group meeting of the other residents of Fountain House to determine if they desired to remain at Fountain House and desired to have Ms. Gunter remain at Fountain House. Having attained their agreement, Ms. Tiltens met with Ms. Gunter to determine if she desired to remain at Fountain House and would abide by the rules of Fountain House if she intended to remain. Ms. Gunter was calm and apologetic, and stated her desire to remain at Fountain House. Ms. Tiltens also contacted several representatives of the Department of Health and Rehabilitative Services on the morning following this incident, explaining what had occurred in detail. Following the report to the Department of Health and Rehabilitative Services, representatives of the Department determined that Ms. Gunter's continued placement at Fountain House would be appropriate. On March 7, 1979, the 38 year-old Ms. Gunter was found dead in her room. An autopsy was performed, and the coroner's conclusion was that Ms. Gunter had died from an epileptic seizure. There is no allegation nor evidence that Ms. Gunter's death was caused by any lack of care, supervision or action by the staff of Fountain House. A full report of Ms. Gunter's death was made by Ms. Tiltens to the appropriate representatives of the Department of Health and Rehabilitative Services immediately after Ms. Gunter was found dead. On or about March 5, 1979, Fountain House had 19 residents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the fine of $250 be assessed. DONE and ORDERED this 2nd day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1979. COPIES FURNISHED: Donna H. Stinson, Esquire Department of HRS Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 Mrs. Natalie Tiltens Fountain House Post Office Box 98 Fountain, Florida 32438
