Findings Of Fact Trees of Florida, Inc. by its president, Jerry K. Rigsby, contacted Everglades Tree and Plant Farm, Inc. to purchase 30 live oak trees. Rigsby saw the size trees he wanted and requested Petitioner to sell him those trees. Petitioner refused to sell the trees desired because they had not been root pruned. Some 60 to 90 days to recover from root pruning are required before trees can be safely uprooted and replanted. Other live oaks that had been sold by Petitioner to another company, Swanson and Coleman, were on the premises, had been root pruned, and Respondent inquired if it could buy those trees. Petitioner contacted Swanson and Coleman who did not need early delivery and Petitioner told Respondent it would sell Respondent 30 of those trees on a cash only basis. Respondent agreed and sent his truck to pick up the trees. They had not yet been dug and Respondent was advised it would be several days before the trees could be loaded. When the trees were dug, Respondent appeared with $2000 cash and a check for the $1360 balance owed. Despite telling Rigsby the deal was strictly for cash, Beaty accepted the check and Respondent took away the trees. Respondent stopped payment on the check and complained to Petitioner that the trees were below the 16 to 18 feet height Respondent had contracted for. Petitioner had its bank check with the payor bank on whom the check was written and was advised Respondent had insufficient funds on deposit to honor the $1360 check. After some negotiations between the parties, Petitioner agreed to take back the 30 trees and refund Respondent's payment if Respondent would replant the trees and they all lived. Respondent never returned any trees or paid the $1360 balance claimed by Petitioner.
The Issue Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford Development Group filed application number 4-117-0464AC-ERP with the St. Johns River Water Management District (SJRWMD) in April 1997, seeking a conceptual approval environmental resource permit. After SJRWMD issued its notice of intent to grant the permit, the Petitioners filed their petitions challenging the intended agency action. The central issue in this proceeding is whether the permit should be issued pursuant to Chapter 373, Florida Statutes, and Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code, including specific provisions of the Applicant's Handbook adopted by rule and identified in the parties' prehearing stipulation filed July 8, 1998.
Findings Of Fact The Parties Michael D. Rich is a former resident of Seminole County who lived on the property contiguous to the Live Oak site. He is the legal representative of his mother who still resides on the property and he is president of C-RED. C-RED is a Florida non-for-profit corporation with members from the City of Oviedo and unincorporated areas of Seminole County who are interested in assuring that development is done without improper impact on the taxpayers and the rural character of the area. Mr. Griffin is a resident of Seminole County living on Horseshoe Lake, which adjoins the Live Oak site. Live Oak is a Florida Limited Partnership which intends to develop the project that is the subject of this proceeding. SJRWMD is a special taxing district created by Chapter 373, Florida Statutes, and charged with responsibility for various permitting programs, including the one at issue here. The Project Live Oak proposes to develop a large multi-phased single family project with two small commercial sites. The project, to be known as "Live Oak Reserve," will be on approximately 1,041 acres on the south side of county road 419 in southeastern Seminole County in the City of Oviedo. The project site is located near the confluence of the Econlockhatchee River (Econ River) and Little Econlockhatchee River. The Live Oak Reserve property includes approximately half of Horseshoe Lake, as well as a small creek, Brister Creek, which flows from Horseshoe Lake across the property to the Econ River. The Econ River, a class III water and designated an Outstanding Florida Water (OFW), crosses the southwestern corner of the Live Oak Reserve property. The Econ River is the receiving water body of Live Oak Reserve. The Live Oak Reserve property is located within the Econlockhatchee River Hydrologic Basin. A portion of the Live Oak Reserve property lies within the Econlockhatchee River Riparian Habitat Protection Zone (RHPZ). The Live Oak property lies within a 1,500 acre drainage basin; approximately 450 acres off-site drain through Live Oak Reserve. Horseshoe Lake has approximately 500 acres that drain through it, then through the wetlands and into the Econ River. Historically, the Live Oak Reserve property has been used for agricultural practices, including siliviculture and cattle production. Some areas of the property have been logged and some areas have been converted to pasture. Cattle have grazed in wetlands, thereby decreasing the amount and diversity of groundcover vegetation on portions of the property. Additionally, on-site drainage ditches have had a major impact on the hydrological characteristics of the wetlands on the property, including the reduction of surface water elevations. The Live Oak Reserve property is currently vacant and undeveloped. The Application Process In April 1997, Live Oak submitted to the SJRWMD an Environmental Resource Permit Application, N4-117-0464AC-ERP, for conceptual approval of a master stormwater and floodplain management system for the development of Live Oak Reserve. A conceptual permit is utilized in complex multi-phased projects which are expected to have a longer build-out period than a single phase project. A conceptual permit does not allow any construction activity, but provides the outline for final engineering calculations and construction drawings. Further permits are required before any sitework or construction is undertaken. In conjunction with its permit application Live Oak submitted detailed technical information, including but not limited to charts, maps, calculations, studies, analyses and reports necessary to show that the conceptual development plan was consistent with the permitting criteria of the SJRWMD found in Chapter 40C-4, Florida Administrative Code, and the Applicant's Handbook. The master plan for the Live Oak project was designed by Donald W. McIntosh Associates, Inc.(McIntosh) using input from: (a) land planners who were required to consider issues related to the comprehensive plans, open space requirements and related issues; (b) landscape architects who were responsible for the proposed park systems and landscape treatments throughout the project; (c) geotechnical engineers responsible for evaluating the soil and groundwater conditions; and (d) environmental consultants, Modica and Associates, who were responsible for wetland delineation and flagging and wildlife surveys. The first version of the Live Oak Reserve site plan prepared for the project by McIntosh included development of all upland areas and filling several portions of the mixed forested wetlands to maximize lot yield. This included development of the upland adjacent to the Econ River and development of an upland parcel on the west side of the river. After much consideration and revision by the developer and its consultants, a site plan was developed which minimizes impacts to wetlands and other surface water functions, particularly as it relates to the Econ river, and maximizes the benefits to wildlife by establishing a series of wildfire corridors across the site. The final plan submitted to the SJRWMD at the time of the application includes the preservation of the entire Econ River floodplain and two adjacent developable upland areas, a large mixed hardwood forested wetland which traverses the site from the northeast to the southwest, and upland and wetland areas in the southern portion of the site that provide a corridor between a large undeveloped parcel to the east and the Econ River to the west. After submission of its application, Live Oak participated in a review process with SJRWMD staff to further eliminate and reduce wetland impacts. Specifically, SJRWMD requested changes to the site plan which included reductions in impacts to various wetlands and additional buffers to other wetlands. Several changes to the site plan were made to accommodate the SJRWMD's concerns relating to reducing impacts to wildlife, particularly the Florida sandhill crane. The reductions in wetland impacts and other design changes resulted in a revised site plan which the SJRWMD staff recommended to the district's governing board for approval. The staff recommendation of approval, with associated conditions, is set forth in Technical Staff Report dated February 10, 1998. On July 14 and 16, 1998, the SJRWMD revised the technical staff report to reflect changes to the project design and mitigation plan, as well as to add conditions inadvertently omitted from the earlier technical staff report. Condition no. 8 was mistakenly added to the July 16 technical staff report and by stipulation of all the parties, this condition was removed from the technical staff report. (See transcript, page 521) Stormwater Analysis McIntosh utilized information from different sources in preparing the stormwater calculations submitted to the SJRWMD. The developer provided information regarding proposed lot sizes and types so as to determine the impervious surface area for developable lots. The geotechnical consultants, Universal Engineering Sciences, (Universal) provided McIntosh with preliminary, interim, and final geotechnical reports, soil boring logs, and groundwater table estimates. The input from Universal primarily involved the establishment of seasonal high and seasonal low groundwater elevations for the pre-development and post-development conditions on the site. The estimated seasonal high and seasonal low groundwater levels refer to the range of levels the groundwater is expected to attain on the site during the wetter (high) and dryer (low) periods of a normal year. These elevations were then utilized in the stormwater calculations prepared by McIntosh. Topography on Live Oak Reserve consists of elevations ranging from 48 feet to 25 feet NGVD. In its pre-development condition, Live Oak Reserve has 6 distinct drainage patterns. Off-site drainage basins also contribute runoff to the property. The conceptual post-development design will modify the project's on-site drainage patterns into 28 drainage basins. At the request of the SJRWMD, Live Oak prepared seasonal high and seasonal low groundwater elevation contour maps. Live Oak performed approximately 200 borings on the Live Oak Reserve property. From the borings, Live Oak determined the soil types present and the existing groundwater elevations. Live Oak also used the borings to assist in establishing the estimated seasonal groundwater elevations. With the exception of several shallow borings in wetland areas, all borings were taken by split spoon sampling. Seventy-nine piezometers were installed next to bore holes to measure groundwater levels. In establishing the seasonal high groundwater levels, Live Oak evaluated the groundwater level at the time of boring; the time of year the groundwater level was measured; the time span of the investigation and its relationship to normal rainfall patterns; soil indicators such as coloration, mottling, and particle size; site specific topography; USGS quadrangle maps depicting site topography; Soil Conservation Service (NSCS) estimates of the expected seasonal high groundwater levels; and vegetative indicators. It is not essential to evaluate rainfall data when determining the seasonal water levels because the historical seasonal water levels are recorded in the soils. The estimated seasonal high groundwater level can be determined during the dry season. The range of the estimated seasonal high groundwater level on the Live Oak Reserve property is from standing water on the ground to five feet below the existing grade. In evaluating Live Oaks estimated seasonal groundwater levels, the District reviewed Live Oak's submittals, and also reviewed the NSCS soil survey to confirm that the estimated seasonal groundwater levels were reasonable. Wetland seasonal surface water levels were estimated using biological indicators such as lichen lines, buttressing, water lines, and sand lines. Lichen lines were apparent on the Live Oak Reserve properly and reflective of normal rainfall conditions. Seasonal high water levels are expected at the end of September. Seasonal low water levels are expected in May. The wetland surface water levels encountered in January 1997, when the seasonal levels were estimated, were neither exceptionally low nor exceptionally high. The water levels were representative of a period of normal rainfall. Water quantity attenuation and stormwater treatment will be accomplished through wet detention ponds and vegetative natural buffers. Due to the location of Live Oak Reserve in the Econlockhatchee River Hydrologic Basin, special basin criteria apply this project. The special basin criteria, also known as the "Econ Rule," is more stringent than the stormwater management criteria set forth in Applicant's Handbook sections 9 and 10. The special basin criteria, as it relates to the surface water management systems, requires Live Oak to control its discharge from two design storms: the mean-annual design storm, and the 25-year, 24-hour design storm. A design storm is a hypothetical storm with a predetermined rainfall amount, a predetermined intensity and 24 hour-duration. Designing the system to control the peak discharge during the mean-annual storm will prevent erosive velocities that would be harmful to Brister Creek and the Econ River. The conceptually proposed system is designed to limit peak rates of discharge to those of pre-development for the mean-annual and the 25-year, 24-hour design storm events. The system, as conceptually proposed, will limit post-development discharge rates to the same as or lower than the pre-development discharge rates. Each stormwater management area will pre-treat its respective post-development basin's pollution volume prior to discharge downstream. Live Oak proposes to use vegetative natural buffers for a portion of the rear lots within the post- development condition to fulfill treatment requirements. Live Oak Reserve is designed for the retention of the first inch of runoff from the total area of the post-development basins or the total runoff from 2.5 inches times the post- development basin's impervious area, whichever is greater. Furthermore, because Live Oak Reserve conceptually discharges to the Econ River, an OFW, the system is designed to provide an additional 50 percent of treatment. For discharges to an OFW the system must treat to a 95 percent removal standard. The outfall structures within each wet detention system are designed to draw down one-half the required treatment volume between 60 to 72 hours following storm event, but no more than one-half of this volume will be discharged within the first 60 hours. Each wet detention pond is designed with a permanent pool with a 31.5-day residence time during the wet season. Residence time is the time that the water within a pond will stay in the pond prior to discharge. The residence time includes the 14-day residence time required of all wet detention systems, an additional 50 percent residence time (7 days) for discharging into an OFW, for a total of 21 days. In addition, each system has been designed to provide an additional 50 percent residence time (10.5 days) because Live Oak has elected not to plant littoral shelves within each pond. As conceptually designed, Live Oak reserve's post- development drainage pattern will have no effect on the drainage patterns of Lake Eva or Horseshoe Lake. As conceptually designed, Live Oak Reserve's post-development drainage pattern will reduce the rate of flow during the storm events, which is a positive effect on the drainage pattern of Brister Creek. The reduction in flow velocity reduces the erosiveness of the storm. Live Oak has demonstrated that the 25-year and 100- year, 24-hour storm events' post-development peak stages for Lake Eva and Horseshoe Lake are not changed as a result of this conceptual project. Based upon Live Oak's calculations, the Live Oak Reserve project will not cause any restriction to the flow of water as it outfalls from Horseshoe Lake to Brister Creek. The conceptual wet detention systems within Live Oak Reserve are proposed to have a maximum depth of 12 feet. However, Live Oak requested consideration at the time of final engineering for each phase of development to maximize selected stormwater management areas for maximum depths of up to 25 feet. That consideration will be made in subsequent application review and is also subject to the City of Oviedo's approval. The conceptual wet detention ponds are designed with an average length to width ratio of two to one, and are configured to minimize the occurrence of short circuiting. As such, they will meet the criteria of the applicable rules. Tailwater conditions for the project were based on published flood elevations. Live Oak analyzed the tailwater condition for the mean-annual, 25-year 24-hour, and the 100-year 24-hour design storms. Live Oak completed a 100-year flow analysis for Live Oak reserve. Pre-development floodplain elevations for Lake Eva, Horseshoe Lake, and the Econ River were referenced from previous studies (Seminole County) and the Federal Emergency Management Agency. Live Oak determined that the 100-year floodplain elevations effecting Live Oak Reserve to be 40.2 feet NGVD from Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD for the Econlockhatchee. The U.S. Geological Survey (USGS) has produced a map of flood prone areas which indicates that the elevation delineating the flood prone area for Horseshoe Lake is 40.14, not 40.2, and for Lake Eva is 43.38, not 45.0. Therefore, the area indicated by USGS as the flood prone area is included in the 100-year floodplain analysis of Live Oak. Live Oak, in its conceptual design, has demonstrated that it will provide compensating storage for any encroachments into the 100-year floodplain. Live Oak has conceptually proposed to fill approximately 18.69 acre- feet within the 100-year floodplain. Live Oak will compensate the filling of the floodplain by providing a cut with the 100-year floodplain of approximately 27.09 acre-feet. By meeting the criteria in the "Econ Rule" the project conceptually meets all other relevant standards for stormwater management as the basin rule is more stringent. Live Oak has provided reasonable assurance that the development will not affect surrounding property or raise stagewater elevations of any surrounding property; the development will not displace the 100- year flood plain area; and the development will not restrict or impede the natural flow from Horseshoe Lake. Wetland and Wildlife Impacts Approximately 430 acres of wetlands cover the project site. Two general types of wetlands on found on the Live Oak reserve property: herbaceous wetlands and forested wetlands. Twenty-three herbaceous wetlands are classified as freshwater marshes. These wetlands range in size from 0.2 acre to over 8 acres. Wetlands 10 and 16, the largest on the property, are mixed hardwood forested wetlands. Approximately 525 acres of the Live Oak Reserve property are located within the RHPZ. Of this area, approximately 410.5 acres are wetlands, and the remainder are uplands that are predominantly pine flatwoods and xeric scrub. A few of the wetlands on site are considered RHPZ wetlands, not "isolated," solely because they are connected to floodplain wetlands by ditches. These wetlands and 50 feet of the uplands surrounding them are considered part of the RHPZ. The wetlands within the RHPZ are intact with little disturbance, especially in the Econ River corridor that is a part of wetland 16. Wetland 10 has been logged and the species composition in that wetland has changed. Wetlands 12 and 14 have ditch connections to the Econ River, but these ditch connections do not appear to have adversely impacted the wetlands hydrologically. Wetlands 2,3, and 8 have ditch connections to the Econ River. These wetlands have been adversely affected (drained) by the ditching. The RHPZ uplands are in good condition and provide very valuable habitat, except for 12 acres that are adjacent to upland cut drainage ditches. These 12 acres have no habitat value. The portion of the Live Oak Reserve property within the RHPZ provides good habitat important to fish and wildlife, and is part of the Econ River floodplain. The upland areas outside the RHPZ on the Live Oak Reserve property primarily consist of pine flatwoods and pasture. The pine flatwoods have been logged and are overgrown. The pasture appears to have been cleared many years ago and planted with bahia grass. Twenty-two isolated wetlands, which total approximately 17.9 acres, are located on the Live Oak reserve property. The isolated wetlands are intact and in good condition, except for temporary impacts due to cattle grazing and logging. The isolated wetlands provide habitat for wading birds, frogs, toads, and other wildlife. Ephemeral wetlands are wetlands that are seasonally inundated, but not necessarily inundated every year. Ephemeral wetlands provide important functions to wildlife, including gopher frogs and other amphibians for breeding, wading birds and sandhill cranes for foraging, and invertebrates. Ephemeral wetlands or "seasonal" wetlands occur on the Live Oak Reserve property. Although Live Oak did not separately address any of the wetlands as ephemeral, the value and functions of ephemeral wetlands were assessed by SJRWMD staff-person, David Eunice. While several small ephemeral wetlands are being impacted by the proposed development, several others are being preserved. Live Oak conducted wildlife surveys of the Live Oak Reserve property in accordance with the Florida Game and Fresh Water Fish Commission's approved Wildlife Methodology Guidelines. Based on the surveys, Live Oak determined that three listed species occurred on-site: the Florida sandhill crane, the gopher tortoise, and the Sherman's fox squirrel. The Florida sandhill crane is a threatened species. Live Oak found no evidence that the property hosts Florida panthers. Although the wildlife surveys did not identify gopher frogs, a species of special concern, the SJRWMD recognized the potential for the gopher frog to use the wetlands, including the ephemeral or seasonal wetlands, on the Live Oak Reserve property. Florida sandhill cranes have been observed foraging in a few areas on the Live Oak reserve property. In the spring of 1997, Live Oak identified two active nests in freshwater marshes (wetlands 21 and 29). There is no evidence that the sandhill cranes are currently nesting in wetland 29; however, Florida sandhill crane nests have been located in wetlands 14 and 21 this year. The typical critical nesting habitat for Florida sandhill cranes is a large, isolated marsh, generally either dominated by maidencane or pickerel weed. The marsh must maintain a surface water level between 12 and 24 inches so that the birds can construct a suitable nesting platform in the marsh. Nesting success, in part, depends upon wetland type used and water depths. The Florida sandhill crane also requires a certain amount of pasture-like upland habitat in which to forage. However, the crane forages in both uplands and wetland. Upland pasture is the sandhill crane's preferred foraging habitat. The sandhill crane's second most preferred foraging habitat is freshwater marsh. When the sandhill cranes have chicks and fledglings, the birds forage in the wetlands. After a period of three to four months, the juvenile and adult sandhill cranes will move to open pasture to forage. The Econ River floodplain wetlands and their associated upland habitats on the Live Oak reserve property are regionally ecologically significant. Overall, the Live Oak Reserve property provides good ecological value. It is part of the river corridor, has a tributary that runs through it and has uplands that have had little disturbance. Live Oak has eliminated certain wetland impacts and reduced others during the design of the Live Oak Reserve project. Live Oak eliminated some road crossings, and redesigned the pond configuration to eliminate or reduce encroachments into wetlands. Live Oak's site plan that was submitted as part of the initial April 14, 1997, application reflects Live Oak's initial attempts to eliminate or reduce impacts. Live Oak, in its application, proposed a project design with 46 acres of wetland impacts. The site plan has changed since Live Oak made the initial application to the SJRWMD. The initial project design called for the removal of the southern one-half of wetland 29 for the construction of a stormwater pond. Live Oak redesigned the project to preserve wetland 29 with a 50-foot upland buffer around it to eliminate direct impacts to the sandhill cranes nesting there. Live Oak further reduced impacts by preserving wetlands 14 and 15, and by placing upland buffers around them to protect sandhill crane habitat. The revised design of the surface water management system reduced wetland impacts by approximately 7 acres. The SJRWMD February 10, 1998, technical staff report includes the design plans reducing impacts by 7 acres. After the SJRWMD issued its February 10, 1998, technical staff report, Live Oak once again redesigned the project to preserve wetland 12. This redesign reduced wetland impacts by an additional 3 acres. In this case, SJRWMD staff worked with Live Oak to reduce or eliminate its impacts. Nonetheless, staff believed Live Oak's proposed mitigation qualified for the exception under Section 12.2.1.2b, that is, the on-site preservation of the Econ River floodplain and associated uplands, in concert with Live Oak's contribution to acquiring a conservation easement over the Yarborough parcel, discussed below, provides regional ecological value and provides greater long term ecological value then the areas impacted. Live Oak proposes practicable design alternatives, but it is not required to reduce or eliminate all impacts. Some design alternatives, such as whether to use a bridge or culverts for the Brister Creek crossing, must be addressed and considered at a later permit application stage and not at this conceptual permit stage. The proposed design includes dredging or filling of approximately 35.9 acres of wetlands and construction in approximately 38 acres of RHPZ uplands. Of these 35 wetlands on the Live Oak Reserve property, Live Oak will completely impact 23 of the wetlands (17.64 acres of wetland impact); partially impact 5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of wetlands); and will avoid impacts to 7 wetlands (40.63 acres). The impacts are mostly limited to the small isolated wetlands, the upland/wetland transitional edges of the floodplain wetlands, and portions of RHPZ already degraded by a ranch roadway and ditch placement. Live Oak focused its impacts on areas, including wetlands, that were historically disturbed. SJRWMD staff considered that the isolated wetlands less than 0.5 acre were used by sandhill cranes and other threatened or endangered species. Therefore, staff required Live Oak to offset impacts to the small isolated wetlands. In addition to physical impacts to wetlands and RHPZ, the habitation of the proposed subdivision, which will result in noise and intrusion into wildlife habitat by humans and their pets, will cause secondary impacts. Those secondary impacts are offset in part by the upland buffers proposed by the applicant (a total of 10 acres of 25 foot buffers and 47.86 acres of 50- foot buffers.) After considering the type of impact proposed; past, present and future activities that may occur in the Econ River Hydrologic Basin; and that Live Oak off-site mitigation of adverse impacts is located within the same hydrologic basin; SJRWMD staff appropriately determined that Live Oak Reserve would not have an adverse cumulative impact. Mitigation Live Oak's mitigation plan consists of both on-site and off-site preservation. The proposed on-site component of the mitigation plan entails the preservation of 19.3 acres of herbaceous marsh, 373.2 acres of forested wetlands, and 124.9 acres of uplands. The mitigation plan preserves approximately 5.65 acres of isolated wetlands on-site, and approximately 386.86 acres of RHPZ wetlands on-site. The cornerstone of Live Oak's on-site mitigation is the preservation of the Econ River forested floodplain swamp, as well as two upland areas, in the southwestern corner of the property. One of the upland areas is a 15-acre upland scrub island on the east side of the river that is surrounded by forested wetlands. The other upland area is 24 acres of uplands located near the Econ River on its west side. Portions of both uplands are within the RHPZ. Both the forested floodplain and the associated upland areas provide habitat of regional ecological significance. The forested floodplain wetlands and the uplands that are part of the RHPZ are protected to a large degree by SJRWMD regulations. These regionally significant wildlife communities, however, can be temporarily, but chronically, impacted, if not permanently degraded, by timbering and other activities that are relatively unregulated. Live Oak proposes to protect and preserve these areas by placing them in a conservation easement. Placing Econ River forested floodplain wetlands and the upland RHPZ areas in a conservation easement will provide a greater level of protection and assurance that they will mature to an "old growth" condition, which will benefit many wildlife species. The Econ River floodplain wetlands, the upland scrub island and the small isolated wetland in the scrub island will accommodate the smaller wildlife species that currently use the Live Oak Reserve property. Live Oak has preserved most of the larger isolated wetlands with high ecological value. The large isolated wetlands preserved on-site will continue to maintain a high level of ecological function even with the surrounding development. Wildlife, such as frogs, toads, snakes, and wading birds will continue to use those wetlands. The on-site portion of the mitigation plan preserves approximately 71.87 acres of upland buffers, of which 2.04 acres are located in 25-foot buffers and 69.83 acres are located in 50- foot RHPZ buffers. The buffer areas will be placed in a conservation easement. The wildlife values of the uplands on this property that are not within the RHPZ are protected to some degree by local government regulations; they are, however, largely unprotected by the existing regulations of SJRWMD. Without the proposed conservation easements, this habitat may be developed or significantly degraded by other activities. As a component of its on-site sandhill crane nesting site management plan, Live Oak preserves a 6.83-acre upland buffer next to wetland 21, which hosts a sandhill crane nest. Additionally, Live Oak provides enhancement of 3.88 acres on the southside of wetland 21 within the 6.83-acre buffer area by converting this area to improved pasture for sandhill crane foraging habitat. The mitigation plan sufficiently offsets the impacts to the smaller isolated wetlands, even if these wetlands have more than a typical resource value. When evaluating impacts and mitigation, Applicant's Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the predicted ability of the wetland or other surface water to maintain their current functions as part of the proposed system once the project is developed. Many of the smaller isolated wetlands, when located in a natural setting such as a pine flatwood, are very critical and provide very high ecological value. However, once a project is developed and the small isolated wetland is surrounded by homes, the resource value of the small isolated wetland is diminished. Many of the smaller wildlife species, such as frogs and snakes, will be extirpated from the developed area of property, whether or not the smaller isolated wetlands remain. SJRWMD considered the value of the off-site mitigation to offset the adverse impacts to the smaller isolated wetlands. In determining the adequacy of the preservation component of the mitigation plan, SJRWMD staff did not rely upon any specific rule, regulation, or comprehensive plan of the City of Oviedo. However, the staff did consider the overall protections afforded by the regulatory and comprehensive plan requirements of the city and determined that preservation of the mitigation areas by conservation easement provided greater assurance that these areas will be protected than the local government rules, regulations, and comprehensive plan. The off-site component of the mitigation plan is the contribution of $160,525 towards participation in the SJRWMD acquisition of a conservation easement over the 3,456 acre Yarborough parcel. The Yarborough parcel is located in the northeastern corner of the Econ River Hydrologic Basin. The Yarborough parcel encompasses property north and south of the Econ River. A portion, mostly sovereign lands, lies within the Puzzle Lake/Upper St. Johns River Hydrologic Basin. The Yarborough parcel is part of a large working ranch. The parcel contains improved and unimproved pasture, significant cabbage palm hammocks, pine flatwood communities, and freshwater marsh. Live Oak's participation equates to the acquisition of a conservation easement over 200 acres of the Yarborough parcel. However, Live Oak is not purchasing any particular 200 acres with the Yarborough parcel. Live Oak's contribution is applied to 200 acres of the Yarborough parcel within the Econ River Hydrologic Basin. SJRWMD estimates that of the 200 acres, 165 acres are wetlands and 35 acres are uplands. This assessment is based on the composition of wetlands and uplands on the Yarborough property within the Econlockhatchee River Hydrologic Basin. SJRWMD has purchased development rights over the Yarborough parcel. Yarborough is authorized to continue its cattle operation on the Yarborough parcel for 20 years in accordance with the conditions of the conservation easement. However, Yarborough is not permitted to increase the amount of improved pasture or further develop the parcel. On the contrary, the conservation easement requires Yarborough to decrease the number of cattle on the parcel over the next 20 years. Purchase of the conservation easement over the working ranch has positive environmental benefits. The conservation easement will protect the wildlife species that use the ranch. This environmental benefit can be used to offset adverse impacts on the Live Oak Reserve property. To participate in this type of mitigation, the acquisition must be imminent so that the SJRWMD is reasonably assured that the purchase will go forward. Participation is precluded for a parcel after its acquisition is concluded. Live Oak's mitigation plan, with its on-site and off- site components, offsets Live Oak Reserves adverse impacts. SJRWMD calculates the mitigation ratio and compares it to the guidelines in the Applicant's Handbook to determine if mitigation is adequate. SJRWMD however, is not required to adhere to any set ratio. The upland preservation ratio (area preserved to area impacted), excluding the 12 acres of uplands along the upland cut ditches and the Yarborough parcel uplands, is 6 to one. The rule guidelines for upland preservation is from 3 to one to 20 to one. The wetland preservation ratio is 15.5 to one. The rule guidelines for wetland preservation is from 10 to one to 60 to one. Public Interest Criteria Live Oak Reserve will not have any effect on the public health, safety or welfare or property of others. Because the mitigation plan adequately offsets all adverse impacts, Live Oak reserve will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Because of the benefits of lowering the discharge rates in the post-development condition and reducing the velocity of stormwater in Brister Creek, Live Oak Reserve will reduce the potential for erosion. Live Oak Reserve will not have any affect on the fishing or recreational values or marine productivity in the vicinity of the site. Live Oak Reserve will be of permanent nature. However, its adverse impacts have been offset by mitigation. The permanence of the project is beneficial in that it provides treatment of untreated off-site runoff from county road 419 by the Live Oak surface water management system and it reduces the discharge rate of stormwater down Brister Creek. Therefore, the permanence of the project is not contrary to the public interest. In accordance with Section 373.414, Florida Statutes, the Florida Department of State Division of Historical Resources determined that the Live Oak Reserve project will have no possible impact to historic properties listed, or eligible for listing, in the National Register of Historical Places, or otherwise of historical or architectural value. Furthermore, the Division of Historical Resources determined that the project is consistent with Florida's Coastal Management Program and its historic preservation laws and concerns. The current condition and relative value of functions being performed by the various vegetative communities on the Live Oak Reserve property is good. However, there is no guarantee that the value and functions would remain good if the property is not managed for species like the sandhill crane or if agricultural and silvicultural practices continue to occur on the property. The mitigation plan, preserving regionally ecologically significant wetland and upland communities on both the Live Oak Reserve and Yarborough parcel by conservation easement, should provide a greater protection of those communities than what currently exists.
Recommendation Based on the forgoing, it is RECOMMENDED That a final order be entered granting Live Oak's application for a conceptual approval environmental resource permit with the conditions set forth in the SJRWMD technical staff report dated July 16, 1998, with the exception of condition 8, deleted by stipulation. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998 COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road Longwood, Florida 32779 Charles H. Griffin, pro se 250 West 7th Street Chuluota, Florida 32766 Michael L. Gore, Esquire Meredith A. Harper, Esquire Ken W. Wright, Esquire Shutts and Bowen, LLP 20 North Orange Avenue Suite 1000 Orlando, Florida 32801 Anthony J. Cotter, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was demoted to an inferior employment position and, if so, whether the demotion was motivated by reasons of racial discrimination, as he has charged.
Findings Of Fact The Petitioner, James S. Brown, Jr., is a black male deputy sheriff, employed by the Sheriff of Alachua County. He has been employed by the Sheriff for approximately 17 years. He was assigned to "uniform patrol" during his employment, but for the majority of his employment time he was assigned to the narcotics division. Sheriff Stephen Oelrich promoted the Petitioner to sergeant in February 2000 and assigned him to a road patrol position and duty. The Sheriff believed at that time that Brown was qualified to serve as a sergeant. The Petitioner, like all other similarly promoted employees, was required to serve a one-year probationary period following the promotion. Sheriff Oelrich is the elected Sheriff of Alachua County, Florida, and has served in that position for 11 years. It is his responsibility to make final employment decisions, including promotions, suspensions, demotions, and terminations. He has had a goal and practice of promoting qualified African- Americans to positions of responsibility including having black captains in charge of patrolling and criminal investigation, as well as promoting black females to lieutenancy's assigned to patrol duties. Additionally, the Respondent Sheriff conducts internal investigations upon receipt of complaints. The internal investigations concerning the Petitioner in this case were initiated because of complaints received by professional standards personnel of the Sheriff's Department, from either external or internal sources or informants. Majestic Oaks Apartments Complaint On or about November 2000, the Respondent's Office of Professional Standards received an internal memorandum from Sergeant Clifton Reynolds, a black male. The memorandum concerned a complaint he had received from a person at the Majestic Oaks Apartments in Gainesville, Florida. The complaint alleged that the Petitioner was attempting to use his position with the Sheriff's Department to obtain an apartment for a former girlfriend, Athena Brown, who had a criminal history. The criminal history would have precluded her from renting the apartment under the policies and rules of the apartment owner. The Respondent's chief inspector, Charlie Lee, initiated an investigation into the matter. He assigned the investigation responsibility to Lieutenant Joel DeCoursey. Eventually he assigned the case to inspector Norman Atkins due to workload considerations. Inspector Atkins conducted the majority of the investigation and interviewed Kimberly Figard, Brenda Raulson, Athena Brown, as well as the Petitioner. The Petitioner purportedly went to the Majestic Oaks Apartment Complex to take a child support order that would verify Athena Brown's income. Kim Figard was the secretary at the office at Majestic Oaks. According to her testimony, the Petitioner identified himself as a deputy sheriff and offered to perform extra patrols around the apartment complex in return for Athena Brown's being allowed to rent an apartment, in spite of her criminal history, which would ordinarily render her ineligible for an apartment. Chief Inspector Lee did not instruct Investigator Atkins to make any particular finding in the Petitioner's case. In fact, when Investigator Atkins informed Chief Inspector Lee that the investigation might go nowhere, Inspector Lee told Investigator Atkins, "if you ain't got nothing, you ain't got nothing." Ultimately, however, Investigator Atkins believed that there was a preponderance of evidence that the allegations against the Petitioner should be sustained. Ultimately, the Respondent relied upon evidence collected during the investigation to reach a "sustained finding" that the Petitioner went to the Majestic Oaks Apartments and identified himself as a deputy sheriff, attempting to use the status of his office or position, to assist, and with the expectation, that Athena Brown, the mother of his child, would obtain an apartment she might not otherwise qualify for. The evidence relied upon by the Respondent included the results of a polygraph examination that the Petitioner volunteered to take and which indicated deception on the part of the Petitioner. The investigator ultimately found the Petitioner to be untruthful as to his version of the Majestic Oaks Apartments events and ultimately it was concluded that the Petitioner violated the Respondent's policy regarding conduct unbecoming an employee and regarding truthfulness. The Respondent uses polygraph tests while conducting other internal investigations and has done so both before and after the internal investigation related to the Petitioner. The Respondent follows a point system with regard to imposing disciplinary action. Each level of violation is assigned points that are carried over if there are future violations. "Carry- over points" can increase the severity of subsequent discipline. Upon reviewing the investigatory findings and recommendations, based on that point system, Sheriff Oelrich believed the results to be accurate. He had no reason to believe that the investigation or the results contained any racial bias. In fact, complaints of a racially biased investigation are themselves routinely investigated as a potential disciplinary matter. The initial recommended discipline for the Petitioner for the violations with regard to the Majestic Oaks Apartments incident, was fifteen days' suspension without pay and a six- month extension of the probationary period. The Sheriff met with the Petitioner on December 21, 2000, however, and agreed to reduce his discipline to eight days' suspension without pay and a six-month extension of his probationary period. The Respondent still wanted to retain the Petitioner in a leadership role because of his past good performance. The second investigation Chief Inspector Lee received information also from Deputy Billy Ray Hunter, which revealed that several members of a drug task force Hunter was assigned to had expressed concern that the Petitioner was associating with a known felon. Gainesville Police Department Detective Jeff Nordberg was also a part of that task force. Deputy Hunter reported that the Petitioner had ignored Nordberg's request to cease associating with an individual later determined to be Andrew Maddox. Upon receipt of the information, the Respondent interviewed one of the drug task force's confidential informants and then initiated an internal investigation into the allegations. Chief Inspector Lee conducted the investigation. During the course of the investigation, Lee interviewed Deputy Sheriff Hunter, a confidential source identified as FDLE-205, Federal Probation Officer Beverly Stiefvater, Detective Jeff Nordberg, Lieutenant Mike Thompson, and Andrew Maddox. The Petitioner and Detective Nordberg of the Gainesville Police Department had previously worked together in a narcotics unit. The Petitioner was a drug investigator at the time and had not yet been promoted to sergeant. Nordberg had been a narcotics officer with the Drug Enforcement Administration (DEA). Detective Nordberg knew Andrew Maddox to be the focus of several drug investigations that year, which led to convictions of other individuals. While Nordberg was with the DEA, the Petitioner called him and advised him that he was "riding around" with Maddox and that Maddox was "showing him some things." Nordberg understood the Petitioner to mean that he was obtaining information from Maddox, because Nordberg knew that Maddox was the focus of a drug investigation and he asked the Petitioner to call him when Maddox was no longer present. Nordberg told the Petitioner in a subsequent telephone call, that the DEA was making controlled drug purchases and that he believed that Maddox was supplying the cocaine in question. Nordberg advised the Petitioner of the information because he was unsure what role Maddox was trying to play by associating with the Petitioner and with drug dealers. Nordberg received information from another drug dealer that the "word on the street" was that the Petitioner and Maddox were "tight." Nordberg advised the Petitioner in the same manner in which he would expect another law enforcement officer to advise him in a similar situation. Nordberg contacted the Petitioner a second time to advise him about the "word on the street" regarding the Petitioner and Maddox. The Petitioner advised Nordberg to take whatever action he needed regarding Maddox and that he would try to give them whatever information he could. Because of the information he was receiving on the street regarding the Petitioner's relationship with Maddox, Nordberg advised Richard Brooks, another of the Respondent's employees, because he wanted the Respondent to know what was going on. However, he did not want to file a formal complaint against the Petitioner. Federal Probation Officer Beverly Stiefvater, Maddox's probation officer, knew the Petitioner through his formal assignment in the drug unit. On one occasion, Maddox advised Stiefvater concerning contact he had with the Petitioner. She called the Petitioner and he advised her that he did not intend to use Maddox in any official manner. On another occasion, she observed an Alachua County Sheriff's Office patrol vehicle parked in front of Maddox's business. Maddox advised Stiefvater that the vehicle belonged to the Petitioner and that the Petitioner was at his business to lift weights. The Petitioner made no effort to contact Stiefvater, Maddox's probation officer, while she was present at Maddox's place of business or afterward to advise her of contact he was having with the Petitioner. Stiefvater became concerned about the Petitioner's presence at Maddox's place of business, because of a certified law enforcement officer, she questioned the ethical and moral correctness of "hanging out with convicted felons." She also discussed the Petitioner's presence at Maddox's place of business with other DEA officers working on the case against Maddox. The Petitioner and his wife accompanied Maddox to an automobile auction so that Maddox could assist the Petitioner's wife in purchasing a vehicle through the use of Maddox's automobile dealer's license. While at the auction, Maddox pointed out persons he believed to be drug dealers from other counties and advised the Petitioner how the drug dealers were outfitting vehicles to transport drugs, according to the Petitioner. The Petitioner, however, did not provide a written report of any of the information received from Maddox to any person in his chain of command. Although he had obtained information from other sources, the Petitioner did not attend an auction with any of his other sources. When the Petitioner sought promotion to sergeant, Lieutenant Mike Thompson wrote a letter of support on his behalf to the Sheriff. Thompson had supervised the Petitioner for approximately 12 years and found him to be an excellent employee. After receiving information that the Petitioner was having contact with Maddox, including using Maddox to purchase vehicles or a vehicle and spending time at Maddox's business, he advised the Petitioner about the Respondent's policy regarding associating with known felons. The Petitioner expressed to Thompson that he did not care what other people thought. On one occasion while Petitioner was assigned to patrol, the Petitioner came to Thompson's office and called Maddox so that he could provide information to Thompson regarding drug dealing. Maddox told Thompson that he would call back to provide the information but failed to ever do so. Thompson, as the Petitioner's supervisor, never received any drug violation-related information from Maddox either directly or indirectly through the Petitioner's efforts. The Respondent's policy states that "Employees while on duty will avoid regular or unnecessary association with persons they know or should know are racketeers, sexual offenders, drug dealers, or convicted felons if not authorized or required due to the nature of the assignment. Association with known offenders or their families, as mentioned above, while off duty is not authorized unless specifically approved by the Sheriff." The Respondent expects its employees and officers who receive information that may be useful for a law enforcement purposes to document that information in writing, for submission to the appropriate agency personnel. The Petitioner did not present any evidence that any employee received information from him or through his efforts and he failed to properly document any information obtained from Maddox or otherwise. After interviewing the identified witnesses and considering all of the information, the investigator concluded that the Petitioner had violated the Respondent's policy regarding association with a known felon and regarding conduct unbecoming an employee. The investigator provided the Sheriff with the disciplinary recommendation based upon the carry-over points from the previous investigation. The Sheriff thereupon reasonably concluded that the information in the investigative report was true and correct. The Sheriff thereupon demoted the Petitioner because of his concern about the Petitioner's leadership skills and his ability to provide direction to subordinate deputies regarding proper contact with known felons in view of the deficient example he was found to have demonstrated regarding his own such association. The Sheriff was also concerned that the Petitioner had been warned about the relationship with Maddox and did not appear to have heeded those warnings. The Petitioner appeared, at best, to be conducting some sort of investigation on his own (although that has not been persuasively demonstrated) and he failed to document his actions or any information he may have received. Sheriff Oelrich also considered that an outside agency had also contacted the Petitioner regarding his contact with Maddox. The Sheriff advised the Petitioner at the time of the demotion that he was demoting him because of his failure to document any information he received from Maddox. There is no persuasive evidence that the Sheriff decided to demote the Petitioner because of any motivation related to the Petitioner's race. Comparative Employee Discipline The Petitioner has identified the following white persons as being similarly situated comparators: Sergeant Darrell Bassinger, Lieutenant David Clark, Deputies Mark Galanos, Brian Davis, Jason Lee, Retired Lieutenant Danny Pascucci, and Records Clerk Susan Marks. However, he did not present any additional documentary evidence to support his testimony. His testimony in this regard is hearsay and cannot be the basis of a finding of fact. When the Petitioner was presented with documentary evidence regarding these other employees, his testimony was shown to differ significantly from the documents. For example, he testified that Deputy Kenny Holt was investigated for conduct unbecoming an officer and had received "a couple of days off" for an incident that occurred at Ironwood Golf Course. In actuality, Deputy Holt was charged with criminal conduct and not conduct unbecoming an officer. Deputy Holt received a 20-day suspension without pay, a one-year probation and was required to go to alcohol rehabilitation. The Petitioner also misstated the Respondent's policy regarding associating with a known criminal, as well as who was present during Lieutenant Mike Thompson's interview during the internal investigation. In fact, Deputy Kenny Holt, a white male, is not similarly situated to the Petitioner because Holt was not a sergeant at the time of the imposition of his discipline. Furthermore, Deputy Holt violated the Respondent's policy prohibiting criminal conduct and received a 20-day suspension without pay and a one-year disciplinary probation. Deputy Holt did not have a violation for conduct unbecoming an officer or for associating with a known offender. The Petitioner has never received a 20-day suspension without pay for any single violation. Lieutenant Don Tyson, a white male, is not similarly situated to the Petitioner because there was not a sustained finding of a policy violation against him as the result of his investigation. Lieutenant Tyson also did not have any carry- over points and was not a probationary employee. He also did not have multiple violations established against him. Records Clerk Susan Marks, a white female, is not similarly situated to the Petitioner. Ms. Marks was not a sergeant, not a supervisor, and is not even a certified law enforcement officer. The Petitioner produced no evidence to show that Ms. Marks had any multiple policy violations or that she had any disciplinary carry-over points at the time of the investigation as to her. The Respondent learned about Ms. Marks involvement with a known felon after the felon was shot in the Respondent's parking lot in mid-2003. The Respondent then initiated an internal investigation following that shooting. Prior to the shooting incident, the Petitioner believed that Ms. Marks had a relationship with a known felon, but did not file a complaint and did not provide evidence that any other person had filed a complaint regarding Ms. Mark's association. The Petitioner produced no evidence to persuasively establish that the Petitioner had any knowledge of any such relationship by Ms. Marks prior to that shooting incident. Neither Sergeant Darrell Bessinger nor Lieutenant David Clark, also white males, engaged in identical or similar conduct as the Petitioner. They were not charged with the same violations as the Petitioner, and did not have any disciplinary carry-over points. The Petitioner speculated but did not provide any persuasive evidence to the effect that Bessinger or Clark were probationary employees, at the time of any discipline of them. Brian Davis, a white male, is not similarly situated to the Petitioner. There is no evidence that he was a probationary employee nor that he had multiple violations or had any disciplinary carry-over points, as did the Petitioner. Mr. Davis was not a supervisor at the time of his discipline, as was the Petitioner. Deputy Michael Galanos, a white male, is not similarly situated to the Petitioner. The Petitioner produced no persuasive evidence that Galanos was a supervisor and did not show that Galanos had multiple violations or disciplinary carry- over points. The Respondent initiated an internal investigation regarding Deputy Galanos for associating with a known felon. After the initial portion of that investigation revealed that there might be criminal implications, the Respondent began a criminal investigation. Because the criminal investigation took priority, the internal investigation would have been re- activated only after the completion of the criminal investigation. That did not occur because Galanos took a leave of absence or resigned before the completion of the criminal investigation and has never been rehired. There was therefore no reason to conclude the internal administrative investigation. Danny Pascucci, a white male, is also not similarly situated, as an employee, to the Petitioner. The Petitioner produced no evidence that Pascucci was probationary in his position as lieutenant. The Petitioner did not establish that any complaints had been filed against Pascucci, that he had multiple policy violations, or that he had any disciplinary carry-over points. The Petitioner produced no evidence that Pascucci's relationship with a documented confidential source was not authorized. The Petitioner did not identify any white deputies who had sustained findings of conduct unbecoming an officer who received more favorable discipline than he received.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the charge of discrimination and petition for relief in its entirety. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Linda G. Bond, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Tallahassee, Florida 32308 Matthew J. Wells, Esquire Post Office Box 5606 Gainesville, Florida 32627-5606
The Issue Whether Petitioner is entitled to a 120.57(1) hearing although he failed to timely file a petition for an administrative hearing within twenty-one (21) days of his receipt of the final agency action letter.
Findings Of Fact The Respondent's final agency action letter was received by the Petitioner on December 11, 1990. The Respondent's final agency action letter concluded as follows: "This letter constitutes final agency action. If you do not agree with this decision, you may request an Administrative Hearing in accordance with Section 120.57, Florida Statutes, by filing a written Petition within 21 days of receipt of this letter. Enclosed is a copy of Rule Sections 28-5.111 and 28- 5.201, Florida Administrative Code, which outline the proper procedure. If you do not request such hearing within that 21-day period, then you shall have waived any right to a hearing in this matter." This was the only written notice that Petitioner received from the Respondent agency concerning his right to request a hearing to challenge the agency's action, or concerning the procedure to be followed in doing so. Copies of the referenced Florida Administrative Code sections were enclosed. The 21-day filing period for Petitioner was scheduled to end on January 2, 1991. Petitioner retained counsel for the purpose of seeking an administrative hearing to challenge the Respondent's proposed final agency action, and a petition was drafted. On December 31, 1990, the petition was ready to be transmitted to the Respondent. Counsel was uncertain whether the petition should be posted by regular mail, or by Express Mail in order to insure guaranteed delivery by January 2, 1991. The concern of Petitioner's counsel was whether the rules required posting or actual receipt of the petition during the 21-day filing period in order to insure his client's right to a hearing. Some time in the afternoon of December 31, 1990, counsel for Petitioner initiated a telephone call to an office in Tallahassee that he believed to be that of the general counsel for the Department of Administration, and asked to speak to an attorney. The woman answering the telephone advised that no attorney was presently available. Following inquiry concerning the purpose of the call, counsel for the Petitioner understood from the secretary that the 21- day filing requirement for a petition requesting an administrative hearing would be deemed satisfied by mailing, evidenced by postmark, within the applicable 21- day period. Counsel for Petitioner relied on this statement, and deposited the petition in the regular U.S. Mail prior to 5:30 P.M. on December 31, 1990. Counsel for Respondent did not call the Legal Office of the Division of Retirement where an administrative secretary and an attorney were on duty during the afternoon hours of December 31, 1990. The petition for administrative hearing filed by Petitioner was not received by the Respondent until January 14, 1991. The delay between the mailing of the Petition and its receipt is unexplained.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered granting an administrative hearing on the Petition filed by Petitioner, and dated December 31, 1990. DONE AND ENTERED this 23rd day of July, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: 2,3,4,5(in part),6,7,8,10,11. Rejected: 1(issue),5(in part-concllusion of law),6,9(irrelevant). Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,7. Rejected: paragraph 4(cumulative), 5(cumulative), 6(irrelevant). COPIES FURNISHED: Keith F. Roberts, Esquire 240 Plant Avenue, Suite B-308 Tampa, FL 33606 Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 (904) 487-1230 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560 Larry Strong Secretary Department of Management Services 2737 Centerview Drive Knight Building, Ste. 307 Tallahassee, FL 32399-0950 Susan Kirkland Acting General Counsel Department of Management Services 2737 Centerview Drive Knight Building, Ste. 110 Tallahassee, FL 32399-0950
The Issue Whether petitioner should rescind its approval of prospectus amendments contained in amended prospectuses petitioner accepted for filing on June 23, 1988?
Findings Of Fact Respondent (Water Oak) manages a mobile home park in Lake County known as Water Oak Country Club Estates (the park). The previous owner envisioned phased development of an eventual total of 1,479 lots, and so stated in the original or "P" prospectus filed with petitioner's Bureau of Mobile Homes (the Bureau). The "P" prospectus contemplated a 587-lot "Golfside Villas" section when phase II of the park was developed. The "P" prospectus disclosed plans to build a separate recreational complex for Golfside Villas, leaving the main recreational complex for the exclusive use of other park residents. But the "P" prospectus stated: Water Oak Estate Mobile Home Park has a clubhouse, swimming pool, tennis courts and a shuffleboard center, which will be available for use by the park residents. The maximum number of lots that will use these shared facilities at the present time is 1,479, which is the total number of lots within the park. The Golfside Villas Section will use these facilities until November 1, 1987, at which time they will use their own facilities, and will no longer use Water Oak Estate facilities except by invitation from the Water Oak Residents' Association, or the Park Management. After Water Oak, Ltd. acquired the park, respondent or its agent filed an amended prospectus ("P86") with the Bureau. The "P86" prospectus differed from the "P" prospectus only to the extent required by the 1986 amendments to Chapter 723, Florida Statutes (1989), and did not alter disclosures regarding recreational facilities. A third Water Oak prospectus ("P2"), preserved the Golfside Villas concept and the idea of a separate recreational complex. As filed with the Bureau, however, the P2 prospectus stated: The recreational and other common areas discussed above are completed and available for use by the residents. The maximum number of home sites that are presently entitled to use these facilities is 590. FUTURE IMPROVEMENTS-- Water Oak Country Club Estates will build an additional clubhouse, a swimming pool, and a shuffleboard center, which will be for and in the Golfside Villas Section. Management may increase or decrease the size or modify the use of any of the shared facilities to serve the changing needs of the community, as determined by management. Petitioner's Exhibit No. 4, p. 7. In due course, the Bureau approved all three prospectuses, "P", "P86" and "P2", one after another. In approving prospectuses "P86" and "P2", the Bureau implicitly deemed them consistent with earlier approved prospectus(es). Because of considerations not pertinent here, Water Oak decided to abandon the idea of a discrete Golfside Villas section with its own exclusive recreational complex. Instead, it proposed, in developing phase II, to build the recreational complex contemplated in prospectuses "P", "P86" and "P2" (the original prospectuses) but to make both the phase II recreational complex and the original complex available to all residents of the park. Accordingly, Water Oak proposed amendments to the original prospectuses outlining its revised plans, and on April 16, 1988, filed them with the Bureau. Water Oak's cover letter explained: More specifically, a new clubhouse, heated swimming pool and shuffle board center open to all park residents will soon be available for use and so information concerning those facilities has been moved from the "Future Improvements" sections of these documents to the "Recreational and Other Common Areas" section. The proposed amendments are designed to make the "RECREATIONAL AND COMMON FACILITIES" section of all these prospectuses identical, and thus the existing versions of that section are deleted in their entirety in each prospectus and the new language substituted. . . . One other point is relevant to your consideration in this matter. The original owner of Water Oak Country Club Estates intended to designate a section of the park as the "Golfside Villas." However, no such section was ever developed ant the current owner has decided not to develop that section as such. Therefore, the Golfside Villas section of the park will not be created. Thus, all references to the Golfside Villas are now proposed to be deleted from all of the prospectuses in use in the park. No homeowner has leased a lot in an area designated as "the Golfside Villas," nor has any resident received any lease or other notification stating that his lot is in an area known as the Golfside Villas. Petitioner's Exhibit No. 3 (Emphasis in original.) Bureau personnel reviewed the amendments and approved the applications. Respondent's Exhibits Nos. 4 and After the approval, Water Oak gave prospective lessees amended P2 prospectuses, and entered into 60 or more leases with new residents to whom they had furnished amended prospectuses. Petitioner's Exhibit No. 7, a printed map of the park that is not part of any prospectus, labels a shaded portion in the northeast as "GOLFSIDE VILLAS AREA." Margerie Monski received a copy of the map on August 4, 1987, (T.411) before she and her husband leased a lot depicted on the unshaded portion of the map, in phase I. Respondent leased lot No. 2472 to Mr. and Mrs. Edward Reposa on April 4, 1988. T. 445; Petitioner's Exhibit No. 11. When respondent filed proposed prospectus amendments two days later, it had leased no other lot within the shaded area on Petitioner's Exhibit No. 7. Respondent leased lot No. 2510 to Mr. and Mrs. Alador Kurucz on April 20, 1988, and lot No. 2519 to Mr. and Mrs. Lloyd W. Wunder on June 8, 1988. Petitioner's Exhibits Nos. 12 and 13. Lots Nos. 2472, 2510 and 2519 all lie within the part of the park represented by the shaded area on Petitioner's Exhibit No. 7. But, as far as the evidence showed, none of the three lots' lessees has ever seen Petitioner's Exhibit No. 7 or any other map of the park on which Golfside Villas was depicted as a discrete section. No prospectus ever indicated that lots had been or were being leased in Golfside Villas. Unbeknownst to Water Oak, Mel Bishop Enterprises, Inc., the predecessor in interest who initially continued as park manager for Water Oak, filed a map similar to Petitioner's Exhibit No. 7 with the Bureau on October 27, 1987 (a prerequisite to its lawful use as advertising.) Petitioner's Exhibit No. 6. Lots depicted in the shaded area number far fewer than the 587 mentioned in the original prospectuses. The three original prospectuses, "P", "P86" and "P2", contain maps of phase I only. Front, back, left side and right side lot dimensions are listed for phase I, lot by lot. With respect to Golfside Villa lot dimensions, only the following appears: Front Left Side 1-587 - - - - 56 90 Petitioner's Exhibit No. 4. On April 6, 1988, respondent's principals were under the impression that no specific area within the park had ever been officially designated as Golfside Villas. Nothing in any of the materials they reviewed when respondent acquired the park located Golfside Villas at a particular spot on the land reserved for development in phase II. Testifying at hearing, petitioner's personnel conceded that respondent had no intention to mislead the Bureau with regard to any fact material to approval or acceptance of respondent's prospectus amendments. Nor did the evidence show that the fact that the respondent leased three lots depicted within the shaded area on Petitioner's Exhibit No. 7 would have been material in the Bureau's original decision to approve respondent's prospectus amendments.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss its notice and order of rejection. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 16, 17, 18, 26, 30, 31, 32, 35, 37, 38, 41, 45 and 49 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the pertinent part of the letter is quoted. Petitioner's proposed findings of fact Nos. 10, 15, 28, 33, 34, 39, 40, 42 and 50 pertain to immaterial matters. With respect to petitioner's proposed finding of fact No. 19, 24, 27, 43 and 44, no prospectus located a "Golfside Villas section of the park" at any specific place. Petitioner's proposed findings of fact Nos. 20, 21, 22, 23, 25 and 47 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 29, Mr. Stoppa made the allegation, but no prospectus located a "Golfside Villas section of the park" at any specific place. With respect to petitioner's proposed finding of fact No. 36, only two such leases were proven. With respect to petitioner's proposed finding of fact No. 46, see paragraph 10 of the findings of fact. With respect to petitioner's proposed finding of fact No. 48, it was not clear from the evidence what the basis was. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 21 22, 24, 28, 29, 30, 31, 34, 35, 37, 38, 42, 43, 44 and 45 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the number was 587. Respondent's proposed findings of fact Nos. 10, 25 and 39 pertain to immaterial matters. Respondent's proposed findings of fact Nos. 13, 14, 15, 16, 17, 18, 19, 20, 26, 27, 32, 33, 36 and 41 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 23, it is not clear what petitioner's policy was at any given time. With respect to respondent's proposed finding of fact No. 40, petitioner failed to prove its materiality. Copies furnished: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301 Daniel C. Brown, Esquire Katz, Kutter, Haigler, Alderman Davis, Marks & Rutledge, P.A. 215 South Monroe Street First Florida Bank Bldg., Suite 400 Tallahassee, FL 32301 E. James Kearney, Director Department of Business Regulation Florida Land Sales, Condominiums, and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shali pay the Agency $2,700. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed April 8, 2015 10:11 AM Division of Administhative Hearings ORDERED at Tallahassee, Florida, on this_ 2-day of _Ayef 2015. pawn Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_copy of this Final Order was served on the below-named persons by the method designated on this & ~day of _—— Apce , 2015. Richard Shoop, Agency Clerk~’ Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Andrea M. Lang, Senior Attorney Evelyn Donato, Administrator Office of the General Counsel L & S Senior Care, Inc. d/b/a Agency for Health Care Administration Arcadia Oaks Assisted Living (Electronic Mail) 1013 East Gibson Street Arcadia, Florida 34266 (U.S. Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs, Case No. 2013011230 L&S SENIOR CARE, INC. d/b/a ARCADIA OAKS ASSISTED LIVING, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (hereinafter “the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, L&S SENIOR CARE, INC. d/b/a/ ARCADIA OAKS ASSISTED LIVING (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2013), and states: NATURE OF THE ACTION This is an action to impose an administrative fine against an assisted living facility in the amount of TWO THOUSAND SEVEN HUNDRED DOLLARS ($2,700.00) based upon two (2) violations. JURISDICTION AND VENUE 1. The Court has jurisdiction over the subject matter pursuant to Sections 120.569 and 120.57, Florida Statutes (2013). 2. The Agency has jurisdiction over the Respondent pursuant to Sections 20.42 and 120.60, and Chapters 408, Part II, and 429, Part I, Florida Statutes (2013). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code. EXHIBIT 1 PARTIES 4. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state regulations, statutes and rules governing such facilities. Chapters 408, Part II, and 429, Part I, Florida Statutes (2013); Chapter 58A-5, Florida Administrative Code. The Agency may deny, revoke, or suspend any license issued to an assisted living facility, or impose an administrative fine in the manner provided in Chapter 120, Florida Statutes (2013). Sections 408.815 and 429.14, Florida Statutes (2013). 5. The Respondent was issued a license by the Agency (License Number 9716) to operate a 65-bed assisted living facility located at 1013 East Gibson Street, Arcadia, Florida 34266, and was at all times material required to comply with the applicable state regulations, statutes and rules governing assisted living facilities. COUNT I The Respondent Failed To Discharge A Resident Who Can No Longer Assist With Activities Of Daily Living In Violation Of Rule 58A-5.0181(4) And (5), Florida Administrative Code 6. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 7. Pursuant to Florida law, except as follows in paragraphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility must be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to- face medical examination by a health care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, Florida Administrative Code. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. (a) The resident may be bedridden for up to 7 consecutive days. (b) A resident requiring care of a stage 2 pressure sore may be retained provided that: 1. The resident contracts directly with a licensed home health agency or a nurse to provide care, or the facility has a limited nursing services license and services are provided pursuant to a plan of care issued by a health care provider; 2. The condition is documented in the resident’s record; and 3. If the resident’s condition fails to improve within 30 days, as documented by a health care provider, the resident must be discharged from the facility. (c) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of a licensed hospice that coordinates and ensures the provision of any additional care and services that may be needed; 2, Continued residency is agreeable to the resident and the facility; 3. An interdisciplinary care plan, which specifies the services being provided by hospice and those being provided by the facility, is developed and implemented by a licensed hospice in consultation with the facility; and 4. Documentation of the requirements of this paragraph is maintained in the resident’s file. (d) The administrator is responsible for monitoring the continued appropriateness of placement of a resident in the facility at all times. (e) A hospice resident that meets the qualifications of continued residency pursuant to this subsection may only receive services from the assisted living facility’s staff within the scope of the facility’s license. (f) Assisted living facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living for residents admitted to hospice; however, staff may not exceed the scope of their professional licensure or training. (g) Continued residency criteria for facilities holding an extended congregate care license are described in Rule 58A-5.030, Florida Administrative Code. If the resident no longer meets the criteria for continued residency, or the facility is unable to meet the resident’s needs, as determined by the facility administrator or health care provider, the resident must be discharged in accordance with Section 429.28, Florida Statutes. Rule 58A-5.0182(4)(5), Florida Administrative Code. 8. On or about April 9, 2013 through April 19, 2013, the Agency conducted two (2) Complaint Surveys (CCR# 2013001667 and CCR# 20130022380) of the Respondent’s facility. 9. Based on record review, observation and interview, the Respondent failed to discharge one (1) of seven (7) residents, specifically Resident number seven (7), who can no longer assist with Activities of Daily Living. 10. On April 10, 2013 at 12:20 p.m., Resident number seven (7) was observed sitting in a wheelchair in a small dining room. Resident number seven (7) remained motionless, and did not attempt to feed him/herself. A staff member fed Resident number seven (7). At 1:36 p.m. of the same day Staff E and Staff B rolled Resident number seven (7) into the resident’s room. A sign was observed above Resident number seven’s (7) bed. The sign read, “Please remember to rotate Resident number seven (7) every two (2) hours (picture taken).” At approximately 1:37 p.m., Staff E and B were observed transferring Resident number seven (7) from the wheelchair to the bed. Staff E bent over and lifted Resident number seven (7) out of the wheelchair, while Staff B lifted Resident number seven (7) from behind. Resident number seven’s (7) feet did not touch the ground during the transfer. Resident number seven (7) remained motionless throughout the transfer process. Staff E and B were observed changing Resident number seven’s (7) adult brief 4 immediately after the transfer. Staff B rolled Resident number seven (7) onto his/her right side while Staff E wiped Resident number seven’s (7) bottom, then Staff E rolled Resident number seven (7) onto his/her left side while staff B replaced Resident number seven’s (7) bed pad. Staff E pulled a new adult brief over Resident number seven’s (7) feet, legs and bottom. Resident number seven (7) was motionless throughout the entire process. Resident number seven (7) was observed not assisting with the Activities of Daily Living. 11. On April 9, 2013 at 4:15 p.m. an interview was conducted with Staff D. Staff D stated Resident number seven (7) was, "Dead weight and could not assist in transfers.” 12. On April 10, 2013 at 1:28 p.m. Staff B was interviewed. Staff B explained that staff would not put Resident number seven (7) on the toilet, because the resident would fall off of the toilet. Staff B continued by saying, "I am going to tell you the truth; we have to do everything for Resident number seven (7)." 13. On April 11, 2013, Resident number seven’s (7) physician was interviewed. The physician confirmed Resident number seven (7) needed "Total care" with Activities of Daily Living. 14. The Respondent’s deficient practice was related to the operation and maintenance of a provider or to the care of clients which the Agency determined indirectly or potentially threatened the physical or emotional health, safety, or security of clients, other than Class I or Class II violations, and constituted a Class III deficiency as provided for in Section 429.19(2)(c), Florida Statutes (2013). 15. | The Agency cited the Respondent for a Class III violation in accordance with Section 429.19(2)(c), Florida Statutes (2013). 16. Onor about July 18, 2013, the Agency conducted a Revisit Survey of the April 9, 2013 through April 19, 2013 Complaint Surveys (CCR# 2013002380 and CCR# 2013001667) of Respondent. 17. Based on observation and interview, the Respondent failed to ensure two (2) of thirty (30) residents, specifically Resident number six (6) and Resident number twenty one (21), were appropriate for continued residency. 18. An observation of Resident number six (6) on July 17, 2013 revealed that all supplies were to be opened and placed on the table for the resident. The med tech had to verbally cue Resident number six (6) multiple times to open the glucometer strips. Resident number six (6) had to be verbally cued to place the strip into the glucometer. Resident number six (6) had to be prompted to open the needle. Resident number six (6) had to be prompted to place the needle on lancet. Resident number six (6) had a difficult time trying to turn the lancet to place on the needle. The med tech had to open the alcohol swab for the resident. Resident number six (6) had to be prompted to wipe his/her finger with the alcohol swab. Resident number six (6) had to be prompted to poke his/her finger with the lancet. The resident had to be prompted to place his/her finger next to the glucometer strip. Resident number six (6) couldn't hold the glucometer and therefore the med tech held the glucometer. Resident number six (6) had to be prompted to read the glucometer. 19. During an interview on July 17, 2013, Resident number six (6) stated, "I do this all the time. But, I don't know why." Resident number six (6) did not know what the number on the glucometer meant. Resident number six (6) had sliding scale coverage and did not understand. when to self-administer insulin and when to hold it. 20. An observation of Resident number twenty one (21) on July 17, 2013 revealed the resident was given the glucometer strip bottle by the med tech. Resident number twenty one (21) attempted to openthe bottle with prompts from the med tech. The resident's spouse tried to open the bottle and after many attempts was unable to open the bottle. At that time the med tech took the bottle and opened the top. The med tech took a strip out. The med tech took the glucometer and had the spouse assist with placing the strip in the bottom of the glucometer. Resident number 6 twenty one (21) was then handed the lancet and the needle. Resident number twenty one (21) was prompted to remove the covering of the needle and was unable to do this. Resident number twenty one’s (21) spouse took the needle and pulled the tab off the top. The resident was then prompted to twist the needle onto the lancet. Resident number twenty one (21) was unable to do this after many attempts. The resident’s spouse also tried. The spouse was unable to twist the needle on the lancet after multiple attempts. The med assistant twisted the needle onto the lancet. Resident number twenty one’s (21) spouse then twisted the lancet and took the top off. The spouse then took an alcohol wipe and cleansed the resident's finger. Resident number twenty one’s (21) spouse then poked the resident's finger. The spouse placed the glucometer against the resident's finger until the glucometer beeped. The glucometer read 248. Resident number twenty one (21) was prompted to take the lid off of the insulin pen and was unable to perform that task. The resident’s spouse didn't understand how to take the lid off either. The med tech took the lid off of the insulin pen and handed the pen to the resident. The med tech then told the resident what to dial the insulin pen to. Resident number twenty one (21) was able to dial the insulin pen. The residents’ spouse wiped the area to be injected with alcohol. Resident number twenty one (21) self-injected with 5 units of novolog insulin. 21. During an interview on July 17, 2013 at approximately 11:45 am. Resident number twenty one (21) was asked what to do if his/her blood glucose was 20. Resident number twenty one (21) said, "I don't know." Resident number twenty one (21) was asked what to do if his/her blood glucose was 400. Resident number twenty one (21) said, "I don't know." These questions were asked of Resident number twenty one’s (21) spouse and the reply was the same. Resident number twenty one’s (21) spouse said that he/she might be able to learn. Both residents are wheel chair bound and had issues with fine motor movement. 22. This remains an uncorrected deficiency. 23. The Respondent’s deficient practice was related to the operation and maintenance 7 of a provider or to the care of clients which the Agency determined indirectly or potentially threatened the physical or emotional health, safety, or security of clients, other than Class I or Class II violations, and constituted a Class II] deficiency as provided for in Section 429.19(2)(c), Florida Statutes (2013). 24. The Agency cited the Respondent for a Class III violation in accordance with Section 429.19 (2)(c), Florida Statutes (2013). 25. The Respondent’s deficient practice constituted an uncorrected Class III violation in accordance with Section 429.19(2)(c), Florida Statutes (2013). 26. | The Agency shall impose an administrative fine for a cited Class IM] violation in an amount not less than five hundred dollars ($500.00) and not exceeding one thousand dollars ($1,000.00) for each violation. Section 429.19(2)(c), Florida Statutes (2013). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of SEVEN HUNDRED DOLLARS ($700.00) pursuant to Section 429.19(2)(c), Florida Statutes (2013). COUNT I The Respondent Allowed Unlicensed Staff To Provide Services To Residents In Violation Of Sections 429.08(1)(a) And 408.812, Florida Statutes (2013) 27. The Agency re-alleges and incorporates by reference paragraphs one (1) through five (5). 28. Pursuant to Florida law, Section 429.08, Florida Statutes (2013), applies to the unlicensed operation of an assisted living facility in addition to the requirements of Part II of Chapter 408. Section 429.08(1)(a), Florida Statutes (2013). Pursuant to Florida law, a person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A license holder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds 8 the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under Section 408.814, Florida Statutes (2013) and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation.(6) In addition to granting injunctive relief pursuant to subsection (2), Florida Statutes (2013), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency. Section 408.812, Florida Statutes (2013). 9 29. On or about April 9, 2013 through April 19, 2013, the Agency conducted two (2) Complaint Surveys (CCR# 2013001667 and CCR# 20130022380) of the Respondent’s facility. 30. Based on record review, observations and interviews, the facility allowed unlicensed staff to provide services to four (4) of nine (9) residents observed, specifically Residents #6, #7, #8, and #9, for which the facility does not have a specialty license to provide. 31. On April 7, 2013 a pre-survey record search revealed the facility has a standard license. 32. On April 9, 2013, Resident number six’s (6) record was reviewed. The record revealed a physician's order dated April 1, 2012 for two (2) liters of continuous oxygen. 33. On April 9, 2013, Resident number seven’s (7) record was reviewed. The record revealed a physician's order dated April 13, 2011 for two (2) liters of continuous oxygen. 34. On April 9, 2013, a review of Resident number eight’s (8) record revealed a physician's order for two (2) liters of oxygen continuously through a nasal cannula. 35. On April 9, 2013, Resident number nine’s (9) record was reviewed. The record revealed the resident was admitted to the facility on January 11, 2005 with an external colostomy bag. 36. On April 9, 2013 at 12:19 p.m., Staff B was observed changing Resident number eight’s (8) oxygen tank in the small dining room. Staff B checked Resident number eight’s (8) Oxygen level then removed a large oxygen tank from the back of Resident number eight’s (8) wheelchair and replaced it with a new oxygen tank. Staff A turned Resident number eight’s (8) oxygen on and set the oxygen level to two (2) liters. 37. On April 9, 2013 at approximately 12:30 p.m., Staff A was observed changing the oxygen tanks for Resident number six (6) and Resident number seven (7). Staff A replaced the tanks for both residents and set both tanks to two (2) liters of oxygen. 38. On April 10, 2013 at 9:45 am., Staff D and Staff F were observed assisting 10 Resident number nine (9) in the bathroom. Staff F disconnected Resident number nine’s (9) colostomy bag from the residents’ stomach area. Staff D retrieved a new colostomy wafer and bag for Resident number nine (9). Staff D cut a hole in the center of the wafer. Staff E entered the room and relieved Staff F. Staff E verbally prompted Resident number nine (9) to clean around the hole in his/her stomach with a wipe. After seeing’ Resident number nine (9) unable to properly clean around the area, Staff E grabbed a few wipes and cleansed around the hole in Resident number nine’s (9) stomach. Staff D placed a new adhesive wafer around the hole in Resident number nine’s (9) stomach. Staff D attached the colostomy bag to the wafer on Resident number nine’s (9) stomach. Staff D placed a clamp at the end of the colostomy bag. 39. On April 9, 2013 at approximately 12:21 p.m., Staff B was interviewed. Staff B stated Resident number six (6), Resident number seven (7), and Resident number nine (9) cannot manage or maintain their own oxygen tanks. Staff B stated the facility staff changes the tanks for these residents. Staff B confirmed she was not a nurse. 40. On April 9, 2013 at approximately 12:37 p.m., Staff A was interviewed. Staff A confirmed she was not a nurse. Staff A also stated when she prepared residents who cannot manage their oxygen for bed, she takes the oxygen tank off the wheelchair and adjusts the oxygen level to 0 (zero) liters. Staff A continued by saying she puts the residents on their respective oxygen concentrators and when they get up in the morning she adjusts the oxygen tank back to 2 (two) liters of oxygen. 41. On April 9, 2013 at 12:37 p.m., Staff C was interviewed. Staff C admitted to assisting Resident number six (6), Resident number seven (7) and Resident number eight (8) with their oxygen. Staff C confirmed she was not a licensed nurse. 42. On April 9, 2013 at 12:45 pm., the Administrator was interviewed. The Administrator confirmed she allowed unlicensed staff members to assist residents with their oxygen tanks and oxygen concentrators. The Administrator confirmed she had a Standard 11 Assisted Living Facility License without a specialty license. She also confirmed the facility does not have licensed staff providing care and services in this facility. 43. On April 9, 2013 at approximately 4:15 p.m., Staff D was interviewed. Staff D described cleaning caring for Resident number nine’s (9) colostomy bag and wound. Staff D stated, "We have to take the colostomy bag off, we remove it [the wafers] from around the hole in the resident’s stomach. “Staff D stated [the facility staff] cleans the area around the wound and replaces the wafer and the bag." Staff D stated Resident number nine (9) cannot connect the colostomy bag without assistance. Staff D added, "Resident number nine (9) can't really get the colostomy bag back on the hole like it needs to." 44, On April 9, 2013 at 4:40 p.m., Resident number nine (9) was interviewed. Resident number nine (9) stated the staff changes the colostomy bag and cleans around the open wound. . 45. The Respondent’s actions or inactions constituted a violation of Section 408.812, Florida Statutes (2013). The Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. 46. Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance as set forth in Section 408.812(4), Florida Statutes (2013). A fine shall be levied notwithstanding the correction of the violation. WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to impose an administrative fine against the Respondent in the amount of TWO THOUSAND DOLLARS ($2,000.00) pursuant to Section 408.812(4) and (5) Florida Statutes (2013). CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully requests the Court to grant the following relief: 12 1. Enter findings of fact and conclusions of law in favor of the Agency. 2. Impose an administrative fine against the Respondent in the amount of TWO THOUSAND SEVEN HUNDRED DOLLARS ($2,700.00). 3. Order any other relief that the Court deems just and appropriate. Respectfully submitted on this QBcd day of Moan 2014. OQ PAL o mr. . J : Andrea M. Lang, Assistant General Cotthsel Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 335-1253 NOTICE RESPONDENT IS NOTIFIED THAT IT/HE/SHE HAS A RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. THE RESPONDENT IS FURTHER NOTIFIED THAT IT/HE/SHE HAS THE RIGHT TO RETAIN AND BE REPRESENTED BY AN ATTORNEY IN THIS MATTER. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED ELECTION OF RIGHTS. ALL REQUESTS FOR HEARING SHALL BE MADE AND DELIVERED TO THE ATTENTION OF: THE AGENCY CLERK, AGENCY FOR HEALTH CARE ADMINISTRATION, 2727 MAHAN DRIVE, BLDG #3, MS #3, TALLAHASSEE, FLORIDA 32308; TELEPHONE (850) 412-3630. THE RESPONDENT IS FURTHER NOTIFIED THAT IF A REQUEST FOR HEARING IS NOT RECEIVED BY THE AGENCY FOR HEALTH CARE ADMINISTRATION WITHIN TWENTY-ONE (21) DAYS OF THE RECEIPT OF THIS ADMINISTRATIVE COMPLAINT, A FINAL ORDER WILL BE ENTERED BY THE AGENCY. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form has been served to: Evelyn Donato, Administrator, L&S Senior Care, Inc. d/b/a Arcadia Oaks Assisted Living, 1013 East Gibson Street, Arcadia, Florida 34266, by U.S. Certified Mail, Return Receipt No. 7012 3460 0001 2195 4148 and to M. C. Edwards, Registered Agent, L&S Senior Care, Inc. d/b/a Arcadia Oaks Assisted Living, 1001 North U.S. Highway One, Suite 400, Jupiter, Florida 33477 by U. S. Certified Mail, Return Receipt No. 7012 3460 0001 2195 4155 on this 13 « & day of , 2014. Copy furnished to: Oona Andrea M. Lang, Assistant ciel Florida Bar No. 0364568 Agency for Health Care Administration Office of the General Counsel 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Telephone: (239) 335-1253 Evelyn Donato, Administrator L&S Senior Care, Inc. d/b/a/ Arcadia Oaks Assisted Living 1013 East Gibson Street Arcadia, Florida 34266 Andrea M. Lang, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (U.S. Certified Mail) (Interoffice Mai!) M.C. Edwards, Registered Agent Harold Williams L&S Senior Care, Inc. Field Office Manager d/b/a/ Arcadia Oaks Assisted Living 1001 North U.S. Highway One, Suite 400 Jupiter, Florida 33477 (U.S. Certified Mail) Agency for Health Care Administration 2295 Victoria Avenue, Room 340A Fort Myers, Florida 33901 (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: Arcadia Oaks Assisted Living CaseNo. 2013011230 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be an Administrative Complaint, Notice of Intent to Impose a Late Fee, or Notice of Intent to Impose a Late Fine. Your Election of Rights must be returned by mail or by fax within twenty-one (21) days of the date you receive the attached Administrative Complaint, Notice of Intent to Impose a Late Fee, or Notice of Intent to Impose a Late Fine. If your Election of Rights with your elected Option is not received by AHCA within twenty-one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a Final Order will be issued. Please use this form unless you, your attorney or your representative prefer to reply in accordance with Chapter 120, Florida Statutes (2013) and Rule 28, Florida Administrative Code. PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Phone: 850-412-3630 Fax: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) ____ I admit the allegations of fact and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a Final Order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) _ I admit the allegations of fact and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)__ I dispute the allegations of fact and law contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3) by itself is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes may be available in this matter if the Agency agrees. License Type: (Assisted Living Facility, Nursing Home, Medical Equipment, Other) Licensee Name: License Number: Contact Person: Name Title Address: Street and Number City State Zip Code Telephone No. Fax No. E-Mail (optional) I hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the above licensee. Signature: Date: Print Name: Title: STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, VS. Case No(s): 2013011230 L & S SENIOR CARE, INC. d/b/a ARCADIA OAKS ASSISTED LIVING, Respondent. SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Respondent, L & S Senior Care, Inc. d/b/a Arcadia Oaks Assisted Living (hereinafter “Respondent”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Respondent is an Assisted Living Facility licensed pursuant to Chapters 408, Part II, and 429, Part I, Florida Statutes, Section 20.42, Florida Statutes and Chapter 58A-5, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Respondent, pursuant to Chapter 429, Florida Statutes; and WHEREAS, the Agency served Respondent with an administrative complaint on or about May 30, 2014, notifying the Respondent of its intent to impose administrative fines in the amount of $2,700; and EXHIBIT 2 WHEREAS, Respondent requested a formal administrative proceeding by filing a Petition for Formal Administrative Hearing; and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Respondent agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, Respondent agrees to pay $2,700 in administrative fines to the Agency within thirty (30) days of the entry of the Final Order. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, Respondent neither admits nor denies, and the Agency asserts the validity of the allegations raised in the administrative complaint referenced herein. No agreement made herein shall preclude the Agency from imposing a penalty against Respondent for any deficiency/violation of statute or rule identified in a future survey of Respondent, which constitutes a “repeat” or “uncorrected” deficiency from surveys identified in the administrative complaint. The parties agree that in such a “repeat” or “uncorrected” case, the deficiencies from the surveys identified in the administrative complaint shall be deemed found without further proof. 7. No agreement made herein shall preclude the Agency from using the deficiencies from the surveys identified in the administrative complaint in any decision regarding licensure of Respondent, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance. The Agency is not precluded from using the subject events for any purpose within the jurisdiction of the Agency. Further, Respondent acknowledges and agrees that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Respondent for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement, by or on behalf of Respondent or related facilities. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Respondent was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14. Respondent agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Respondent in the Final Order, or any portion thereof, owed by Respondent to the Agency from any present or future funds owed to Respondent by the Agency, and that the Agency shall hold a lien against present and future funds owed to Respondent by the Agency for said amounts until paid. 15. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. 16. This Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. sexe Evel) Donato, Admninistrator ty Secri L &§ Senior Care, Inc. d/b/a Agency for Health Care Administration Arcadia Oaks Assisted Living 2727 Mahan Drive, Bldg #1 1013 East Gibson Street Tallahassee, Florida 32308 Arcadia, Florida 34266 DATED: ¥)2/15 DATED: YSS Ms. Stuart F. Williams, General Counsel Theodore Mack, Esq., Agency for Health Care Administration Powell and Mack 2727 Mahan Drive, Mail Stop #3 3700 Bellwood Drive Tallahassee, Florida 32308 Tallahassee, Florida 32303 Attorney for Respondent DATED: hp R hs DATED: 3/ 9/5 Geer w ir . Andrea M. Lang, Senior Attorney Agency for Health Care Administration 2295 Victoria Avenue Fort Myers, Florida 33901 parep:_3(\ 6] |S
The Issue Whether Respondent Whispering Oaks Estates Home Owners’ Association, Inc. (Whispering Oaks Estates HOA), failed to provide a reasonable accommodation for the late Charles A. Tipton’s disability in violation of Florida’s Fair Housing Act; and, if so, the relief that is appropriate.
Findings Of Fact Whispering Oaks Estates HOA governs Whispering Oaks Estates, a property located in Hernando County, Florida. Every owner of a lot in Whispering Oaks Estates is a member of Whispering Oaks Estates HOA. A document entitled “Amended Declaration of Covenants, Conditions and Restrictions” (the Covenants) sets forth several conditions governing lot owners’ use of their property and empowers Whispering Oaks Estates HOA to enforce those conditions. For example, the Covenants mandate that an “Architectural Control Committee shall be responsible for approving or rejecting house designs, size, elevation, color, and/or any other matters generally relating to protection of the overall aesthetic harmony of Whispering Oaks Estates.” Also, a lot owner cannot erect a fence, wall, antenna, or a cable television facility without prior approval from Whispering Oaks Estate HOA’s Board of Directors or the Architectural Control Committee. In addition, if a lot owner fails to care for his or her lawn, then the Board of Directors can hire a lawn-care service to cut and trim the lot owner’s lawn as necessary. Furthermore, the Covenants expressly prohibit garage sales, and lot owners’ ability to park boats, campers, trucks, pickups, trailers, or recreational vehicles in Whispering Oaks Estates is strictly regulated. The Covenants also provide that they can be amended by a two-thirds vote of the lot owners. Dr. Tipton holds a doctorate in management information systems from the University of Sarasota and has lived in Whispering Oaks Estates since August of 2005. Dr. Tipton resides in a section of Whispering Oaks Estates that consists of five townhomes, which are the property of the townhome owners. The five townhome owners jointly own a nearby parking lot, and each townhome owner has two spaces in the parking lot. Dr. Tipton’s townhome is approximately 130 feet from the parking lot. Dr. Tipton shared her townhome with her father, who suffered from Chronic Obstructive Pulmonary Disorder (COPD). As a result, Mr. Tipton needed supplemental oxygen and made use of a walker and a wheelchair. In addition, Dr. Tipton assisted her father with his daily activities as necessary. Because of Mr. Tipton’s condition, it was impossible for him to traverse the distance between the parking lot and his daughter’s townhome on foot. Therefore, Dr. Tipton would utilize a golf cart to transport her father between the parking lot and her townhome. Because of the golf cart’s size, Dr. Tipton needed five feet alongside the passenger’s side of her vehicle to remain unobstructed so that she could transfer her father between her vehicle and the golf cart. In October of 2013, Dr. Tipton wrote a letter to Nancy Frizelle, who was the president of Whispering Oaks Estates HOA at the time. Dr. Tipton’s letter had a subject line referring to “Disabled Access/Fair Housing Act,” and the body of the letter stated the following: Dear Mrs. Frizelle, The Homeowners Association has a valid purpose. It protects the homeowners so we can sell our properties located on a beautiful golf course. My goal is to attempt to obey all housing rules and deed restrictions to create a nice community. However, at no time, will I support any type of discrimination or harassment from other home owners over parking. That is what this letter is about as we wish to resolve this quickly without going to court. As you are aware, my house has shared designated parking. Each owner has 1/5 ownership of a parking lot that has two designated parking spaces per owner. My Dad resides with me as I am his caregiver. Under the law, the caregiver is considered the same as the disabled person. All of the owners have left the walkway open as some of the 5ft access is part of my actual parking space. The other footage is in Bonomo’s. None of us owners had a problem before keeping it open. The one lawsuit that would concern the Homeowners Association is under the Fair Housing Act. The attorney we consulted is a specialist in that area. Her name is Lynn Handshaw located in Tampa, Florida. She requested that this letter be written as the association is an indirect body that controls the parking lot. It was further explained to Lynn that our intent is not to file a lawsuit to the association because they do try to keep the community in good standing. However, we will if necessary. The private parking lot is owned by (5) five homeowners but it is required by the association that we park there. We are giving the association (10) ten days to notify Bonomo, Collazo, and Buckingham that Reeves will be painting the blue lines and white “no parking” on that five foot ADA access way. Each owner can give up (1) one foot to have that painted. According to my attorney, she does not care if the association or homeowners agree to this or not. She stated that if they don’t comply she will file a lawsuit against the association and only the homeowners, that don’t comply. She will do it on a percentage contingency. Please get with Mr. Murphy so that he fully understands that the 5 ft access is to remain unblocked and painted so the Sheriff’s Office can tow any vehicle that is blocking its’ path. If the association does not want to support my having ADA access then they can buy my house or place parking in front of my home like the other villas, at their expense. While this would ruin my view, it would give me quiet ownership without having to put up with the constant upheaval of parking. Please respond back to me within (10) ten days as to the associations [sic] intentions as we would like this to be resolved. Thanks for your attention to this matter. Respectfully, Dr. B.J. Tipton Ms. Frizelle responded to Dr. Tipton’s letter via a letter dated October 19, 2013, stating the following: Dear Ms. Tipton, Your letter entitled Disabled Access/Fair Housing Act was presented to the Whispering Oaks Estates Home Owners Association for consideration at its regular Board of Directors meeting on October 16, 2013. The Board’s position is quite simple: the Whispering Oaks Estates Home Owners Association has neither the jurisdiction nor the responsibility to police private property rights and or/disagreements. Therefore, we can initiate no action to help you solve the situation described in your letter. Very truly yours, Nancy Frizelle President Whispering Oaks Estates Home Owners Association On November 18, 2014, Dr. Tipton wrote a letter to Wayne Parlow, who was the president of Whispering Oaks HOA at the time. Dr. Tipton’s letter had a subject line referencing “Easement, Parking, Harassment” and stated the following: Dear Mr. Parlow and Board Members, As you are aware, The Department of Justice has the case concerning access to the parking lot under the disabilities and fair housing act. The department has a copious amount of pictures, documents, video recordings and the letter from Ms. Frizelle, past president. This is not a parking lot dispute as Ms. Frizelle and others had attempted to indicate. The case is simple. The Homeowners Association held themselves out to be an association but failed to perform. Reasonable accommodations were requested and denied. Harassment then started from various individuals. Discrimination is ugly. I am the youngest owner with a disabled father that is a permanent resident in the home that I have owned for ten (10) years. The Department of Justice has made it clear that my legal rights have been violated. All of these discussions are documented through e- mails. My case is in the queue. After the Department of Justice completes their job my civil attorney, in Tampa, will have the second lawsuit against the private owners, Arvin Franklin Marshall, Jr. (A.K.A. Lucky) and Michele Cerise Collazo Nelson Dorney that have denied access/blocked/ /verbally insulted/stalked and harassed me and/or my dad. Some of this has been documented with the Hernando County Sheriff [sic] Office. There are pictures and video recordings that have been forwarded. Lucky or Michele do not own any portion of that parking lot. Please remember, that my family or I have never known Lucky prior to him living with Michele. There has never been any conversations, initiated by me or my family, to Michele or Lucky. No one in my household has anything to do with the Collazo residence or Lucky or Michele. Lucky has sexually harassed me on several occasions and this has been reported. Recently, Lucky confronted me and my dad, on the golf cart, one day in the parking lot, when doing transfer. He stated he was going to put my dad “in the bottom of the Withlacoochee River with cement shoes.” We contacted the Hernando County Sheriff [sic] Office. Lucky or Michele are not allowed on any land that I own or partially own due to harassment. Kenneth and Rachael Reeves are the only 1/5th owners that will not be included as they know the law and have stated they have no intentions of breaking it. Roger Levesque, Jr. may possibly be included as well. Again, I do not know Roger and have never spoken to him. Roger bought 35000 Whispering Oaks Blvd and is Lorraine Collazo’s friend. He approached me one day, in the road in front of my home, threatening me over the parking lot. It is amazing that someone would threaten an owner that they have never spoken with concerning any issue. Furthermore, he never even tried to obtain facts prior to his threat. That also has been reported. The third lawsuit concerns the easement. In a previous letter this issue was mentioned. It has also been discussed verbally. This letter is to advise the association that I have retained Mr. Jacob I. Reiber of Wesley Chapel, Florida for the easement issue. He requested that this letter be sent. We will be seeking emergency mandatory injunctions to not have any further plantings in my secondary easement, if necessary. The homeowners association[] has been contacted on numerous occasions over the years that the easement needed to be cleared so that my mowers and golf cart could have access. The grapefruit/lemon tree and purple bush were all planted by the Bonomo[]s that own 35004 Whispering Oaks Blvd. The four wood slabs that create a planter box were installed by Collazo and Bonomo. Collazo owns 35002 Whispering Oaks Blvd. If these items were removed I probably would have access. These are all man made obstructions. This forces me to use the easement owned by the golf course, which is allowed, if an easement is obstructed, according to the restrictions. All legal cost for reimbursement will be included in this lawsuit. The association has thirty (30) days to get with Mr. Reiber concerning their intentions. Mr. Reiber will be in contact with Arvin and Michele to keep them from harassing and stalking me over the parking situation. Michele is Lorraine Collazo’s daughter that lived at 35002 Whispering Oaks Blvd. on and off throughout the ten (10) years that I have owned my home as a primary residence. It is dangerous for me to do my daily walks due to Lucky entering the neighborhood. Neither Arvin nor Michelle has a license to practice real estate or law but seem to dispense advice concerning ADA and the parking lot deed. Their opinion simply does not count as neither have legal ownership and are not a member of the association. This could be considered a felony. These cases are interrelated but will be kept separate. Please do not respond to me concerning this letter. Mr. Reiber has all the documents needed to discuss this situation. Please contact Mr. Reiber or have Mr. Murphy make contact concerning these issues. Our intention is to have all these issues resolved as quickly as possible. Have a Happy Thanksgiving! Respectfully, Dr. B.J. Tipton Mr. Tipton died in March of 2015. While his will nominates Dr. Tipton to act as the personal representative to dispose of his property if Mr. Tipton’s son is unable or unwilling to do so, Dr. Tipton testified during the final hearing in this matter that “an estate has not been opened.” Dr. Tipton asserted during the final hearing that she requested a “reasonable accommodation” (within the meaning of Florida’s Fair Housing Act) by asking the Whispering Oaks Estates HOA to keep the five feet alongside the passenger side of her truck unobstructed. Dr. Tipton also asserted during the hearing that she verbally communicated her reasonable accommodation request on multiple occasions to those in charge of Whispering Oaks Estates HOA. As a matter of ultimate fact, Mr. Tipton was handicapped/disabled and five feet of additional space adjacent to Dr. Tipton’s parking space was necessary in order for Mr. Tipton to use and enjoy Whispering Oaks Estates. As a matter of ultimate fact, Dr. Tipton proved by a preponderance of the evidence that she communicated a reasonable accommodation request via her October 2013, letter to Whispering Oaks Estates HOA. As a matter of ultimate fact, the Whispering Oaks Estates HOA had the authority to mandate that the five feet of space adjacent to Dr. Tipton’s parking space remain unobstructed. Dr. Tipton is seeking damages based on Whispering Oaks Estate HOA’s denial of her request for a reasonable accommodation. Specifically, she seeks to be reimbursed $53.50 for a camera that was used to monitor the parking lot that she and her neighbors jointly owned. Dr. Tipton also seeks to be reimbursed $125.00 for the cost of hiring a tow truck to remove a vehicle from her parking space. Finally, Dr. Tipton seeks $25,000 in punitive damages. As a matter of ultimate fact, Dr. Tipton failed to demonstrate that the costs associated with the camera and the towing service were related to the denial of a reasonable accommodation. Instead, it is more likely that those costs were associated with the alleged harassment described by Dr. Tipton. Indeed, Dr. Tipton testified at length during the final hearing about the alleged harassment and stated that the camera was intended to monitor whether anyone attempted to sabotage her vehicle.
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 Petitioner’s Petition for Relief. The Estate of Charles A. Tipton’s requests for damages and its Motion for Attorney’s Fees are DENIED. Whispering Oaks Estates HOA, Inc.’s Motion for Attorney’s Fees is DENIED. DONE AND ENTERED this 16th day of December, 2015, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 16th day of December, 2015. COPIES FURNISHED: Tammy 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) B. J. Tipton Estate of Charles A. Tipton 35006 Whispering Oaks Boulevard Ridge Manor, Florida 33523 (eServed) Michael Joseph Bayern, Esquire 570 East Long Beach Road St James, New York 11780 (eServed) David J. Murphy, Esquire Mander Law Group 14217 Third Street Dade City, Florida 33523 (eServed)
