Findings Of Fact David W. Shepard is President of Loreda Development, Inc., which has developed Lake Suzy Estates on approximately 160 acres in the southwestern portion of DeSoto County, bordered by Kings Highway. Lake Suzy includes approximately 245 single family lots, 100 of which are sold, with a 42 acre man-made lake. High density and commercial areas are also designated within Lake Suzy. Development of Lake Suzy began in 1972 and is still underway. There are approximately 2 1/2 to 3 miles of asphalt-top roads within Lake Suzy. Construction of these roads began in 1974 and was completed in 1984. On or about September 26, 1985, Petitioner issued a Notice to Show Cause charging that, "Respondent has failed to construct the completed roads and drainage improvements in accordance with DeSoto County specifications, in violation of Section 498.033(2), F.S." The County Engineer for DeSoto County, George Solana, testified that roads and drainage improvements within Lake Suzy do not meet DeSoto County specifications, and Eugene E. Waldron, Jr., County Administrator, testified that the county has not accepted the roads or drainage improvements in Lake Susy for maintenance. In September, 1982, Shepard met with Solana and was informed of several conditions he had to meet to bring Lake Suzy's roads and drainage improvements into conformance with county specifications. Shepard then applied for a permit on September 16, 1982, which was issued on November 1, 1982, subject to conditions enumerated by Solana in a letter dated September 8, 1982. In March, 1985, Solana reviewed the roads and drainage improvements in Lake Suzy and found that most of the deficiencies and conditions noted in 1982 remained. Solana categorized these remaining deficiencies in a letter to the County Administrator, Waldron, dated March 28, 1985 and revised April 5, 1985, as follows: Drainage easements Cross-sections Materials and quality control Existing construction Inlet grates and steel end sections Street and traffic control signs Grassing Certificate of satisfactory completion Other deficiencies At the time of the hearing on February 20, 1986, only the drainage easement deficiencies had been corrected in accordance with DeSoto County specifications. Shepard testified he was fully aware of Solana's conditions in 1982 and the remaining deficiencies noted in 1985. Further, he had tried to correct the deficiencies and meet these conditions for compliance with DeSoto County specifications. He does not dispute that the deficiencies noted by Solana as still existing in 1985 would have to be corrected to comply with the county public works manual. The Order of Registration for Lake Suzy, issued by Petitioner on June 4, 1973, includes a Public Offering Statement which states that roads will be installed to the specification of DeSoto County and will be maintained by the county. As revised on October 21, 1980, the Public Offering Statement includes the same statement about road improvements in Lake Suzy. Respondent has failed to comply with this provision in its Public Offering Statement.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order which requires Respondent to comply with Section 498.033(2), Florida Statutes, within one year by bringing roadways within Lake Suzy into compliance with DeSoto County specifications and by requesting that DeSoto County accept said roads in their road maintenance system, and further providing that failure to comply with said Final Order within the one year period shall result in a one-year suspension of Respondent's registration and a civil penalty in the amount of $10,000. DONE and ENTERED this 14th day of March, 1986, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1986. COPIES FURNISHED: Thomas L. Barnhart, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 David W. Shepard, President Loreda Development, Inc. 910 Kings Highway Lake Suzy, Florida 33821 James Kearney, Director Division of Florida Land Sales Condominiums and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 8. 4 Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. 6-7 Accepted although not necessary as a finding of fact. The weight of the evidence supports Petitioner's position after considering all evidence presented by Respondent. 8 Adopted in part in Finding of Fact 1. Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected after considering all evidence presented. Respondent's position is not based on competent substantial evidence.
Findings Of Fact The Petitioner is the Division of Hotels and Restaurants of the Department of Professional Regulation. The Respondent is Thomas L. Burns. At all times pertinent to these proceedings, he was the operator of the Happy Acres Tavern and holder of public food service license number 15-00079R issued by Petitioner. Michele Cielukowski is a sanitation inspector with the Brevard County Health Department. On February 24, 1988, she inspected the premises of the Happy Acres Tavern. A septic tank and drain field are located immediately adjacent to the facility. Fifteen feet from the other side of the septic tank and drain field is a drainage ditch. She observed water standing in the drainage field and detected the presence of a strong malodor. Further inspection revealed the top soil above the drain field was saturated with water, the lid on the septic tank had been removed from the tank, and the tank's effluent contents were exposed to the open environment. The city water line serving the establishment runs across the top of the septic tank. The tavern's bar sink drain was disconnected from the septic tank, allowing waste water from that source to flow out on the ground. A type of vegetation, known as "dollar weed", grows profusely in the ditch and is a strong indicator that some effluent is leaching into the ditch. Plumbing in the women's rest room of the facility was sluggish and required a second attempt by the inspector before the toilet would flush. In the course of the inspection, Ms. Cielukowski took water samples from the standing water in the ditch and from a water faucet in the tavern. Upon analysis, the faucet water revealed the presence of fecal coliform which are organisms commonly associated with feces eliminated from the digestive tract of animal life. While the faucet water fecal coliform count was less than 10, the quantities of the organism found in the water samples taken from the ditch revealed a count of 1,000. Based on testimony of Richard G. Biondi, director of consumer health services in Brevard County, the finding is made that fecal coliform should not be present in any amount in the public drinking water supply in the tavern's locale. Since the water line to the tavern runs across the septic tank and surrounding saturated soil, there is a possibility of fecal coliform entering the water system in the event of a drop in the water pressure within the line. Dr. Manuel Garcia is the director of the Brevard County Health Service. After review of the results of the inspection of the Respondent's business, inclusive of the water analysis results, he ordered the tavern condemned to prevent a hazard to the public health. His decision was based upon the possibility of contamination of the public water supply by the sewage escaping from Respondent's establishment. In addition, the open septic tank and malfunctioning drain field increase the possibility of hepatitis, cholera, typhoid fever and other diseases. Diann Worzella is a sanitary supervisor with Brevard County. She visited the tavern premises on February 24 and March 1, 1988. The sewage disposal system comprised of the septic tank and drain field were in a serious state of malfunction. Her testimony corroborates that of Ms. Cielukowski with the additional observation that the tavern's sewage system is termed a "dead system." Within the parlance of sanitation experts, such a designation means the system cannot be restored and must be replaced. She noted that local county ordinances and state regulations require all businesses offering services to the public to have a properly functioning waste disposal system. Testimony by the Respondent confirmed a leak existed in the waterline pipe running across the septic tank and into the tavern. The Respondent maintains the leak has been repaired and topsoil above the drain field is now dry. He presented no evidence as to the manner in which the repair had been effected or that water purity in the faucet water had been restored. He also did not address whether the septic tank and its contents had been sealed from exposure, or if other noted plumbing deficiencies had been corrected. The plumbing difficulties and sewage disposal deficiencies existing at the Happy Acres Tavern constitutes an immediate danger to the public health sufficient to outweigh continued operation of the Respondent's licensed food service business. The Respondent's establishment does not have a properly plumbed and approved sewage disposal system.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered: Continuing the emergency order of suspension of license number 15- 00079R until Respondent has corrected all deficiencies noted in the public health inspection conducted on February 24, 1988, including provision and maintenance of a properly plumbed and approved sewage disposal system for the facility known as Happy Acres Tavern, provided such suspension shall not exceed the maximum period of 12 months provided by section 509.261 (3), Florida Statutes. Finding the Respondent guilty of failing to maintain a safe water source and an approved sewage system as set forth in sub paragraphs 2a. and 2b. of paragraph number 2 in the Notice to Show Cause. DONE AND RECOMMENDED this 25th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. Petitioner Included in finding number 2. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 7. Included in finding number 7. Included in finding number 7. Included in finding number 7. Rejected as unnecessary. Included in finding number 3. Included in finding number 3. Included in findings 3 and 4. Rejected as unnecessary. Included in finding number 4. Included in finding number 5. Rejected as unnecessary. Unnecessary. Unnecessary. Included in finding number 6. Unnecessary. Included in finding number 8. Proposed findings of fact submitted by Petitioner in paragraphs numbered 22 through 28 are conclusions of law and are rejected as unnecessary.
The Issue The letter assessing the fine, dated May 8, 1979, sets forth eleven (11) alleged violations. These violations fall into three (3) general categories. The first of these categories deals with the failure to prepare the required documentation for the admission of an individual and appropriate incident reports. The alleged violations recited in Paragraphs Numbers 1, 2, 3, 4, 7 and 10 are included in this category. The second category concerns the allegations that Natalie Tiltens and Fountain House failed to appropriately supervise individuals residing there. The allegations contained in Paragraphs Numbers 5, 6, 8 and 9 are included in this category. The third category concerns the failure to maintain appropriate staffing levels. The violations recited in Paragraphs Numbers 5 and 11 are included in this category.
Findings Of Fact Natalie Tiltens is the operator of Fountain House, an adult congregate living facility licensed and regulated by the Department of Health and Rehabilitative Services of the State of Florida. Gloria Gunter was placed at Fountain House by employees of the Department of Health and Rehabilitative Services. Ms. Gunter had previously been hospitalized at the State Hospital in Chattahoochee, Florida. After a preliminary visit at Fountain House, during which a decision was made by Ms. Tiltens, Ms. Gunter and the case worker that Ms. Gunter would be suitably placed at Fountain House. Ms. Gunter was transferred from the Florida State Hospital to Fountain House. Although medical information, personal information and past medical history had been requested by the Department's case worker from her counterpart at the State Hospital, these records were not forwarded with Ms. Gunter. Although a contract had been entered into between the Department of Health and Rehabilitative Services and Ms. Tiltens to pay Ms. Tiltens directly for the placement of Ms. Gunter, information was not available from the Department of Health and Rehabilitative Services upon which to complete the appropriate medical forms and personal information sheet and to prepare a contract for the services which Ms. Gunter would require. This information was not made available to the Department's case worker and Ms. Tiltens until after the death of Ms. Gunter. On the night of March 5, 1979, her first night as a resident of Fountain House, Ms. Gunter left the facility, went to a local bar and got drunk. The bar called Fountain House, having determined that Ms. Gunter was residing there, and requested that someone from Fountain House pick up Ms. Gunter, because she was rowdy and disturbing the other patrons. This call was received by Cecilia Blackman, another resident of Fountain House, who had been asked by Ms. Tiltens to take telephone calls while she was away from Fountain House for the evening. Ms. Blackman advised the caller from the Pine Tree Bar that if Ms. Gunter were rowdy it would be appropriate to call the police, and that no one was available to transport her back to Fountain House. Subsequent to this telephone call, Ms. Gunter arrived back at Fountain House. Shortly thereafter, Ms. Tiltens arrived and found Ms. Gunter extremely drunk, violent and combative. Although drinking was against the rules of Fountain House, Ms. Gunter had a bottle of whiskey with her which she refused to surrender to Ms. Tiltens. A scuffle occurred between Ms. Gunter, Ms. Tiltens and Mr. Ivy, another staff member, when Ms. Tiltens and Mr. Ivy attempted to take the bottle of whiskey away from Ms. Gunter. Although attempts were made to get Ms. Gunter to go to bed, she refused and eventually ended up in the yard outside Fountain House. While in the yard, Ms. Gunter disrobed and continued to be violent and combative toward Ms. Tiltens. In order to calm Ms. Gunter and subdue her violent and combative behavior, Ms. Tiltens turned a garden hose on her. Thereafter, Ms. Gunter returned to the interior of Fountain House and went to bed, and she remained there until the next morning. On the following morning, Ms. Tiltens held a group meeting of the other residents of Fountain House to determine if they desired to remain at Fountain House and desired to have Ms. Gunter remain at Fountain House. Having attained their agreement, Ms. Tiltens met with Ms. Gunter to determine if she desired to remain at Fountain House and would abide by the rules of Fountain House if she intended to remain. Ms. Gunter was calm and apologetic, and stated her desire to remain at Fountain House. Ms. Tiltens also contacted several representatives of the Department of Health and Rehabilitative Services on the morning following this incident, explaining what had occurred in detail. Following the report to the Department of Health and Rehabilitative Services, representatives of the Department determined that Ms. Gunter's continued placement at Fountain House would be appropriate. On March 7, 1979, the 38 year-old Ms. Gunter was found dead in her room. An autopsy was performed, and the coroner's conclusion was that Ms. Gunter had died from an epileptic seizure. There is no allegation nor evidence that Ms. Gunter's death was caused by any lack of care, supervision or action by the staff of Fountain House. A full report of Ms. Gunter's death was made by Ms. Tiltens to the appropriate representatives of the Department of Health and Rehabilitative Services immediately after Ms. Gunter was found dead. On or about March 5, 1979, Fountain House had 19 residents.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the fine of $250 be assessed. DONE and ORDERED this 2nd day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1979. COPIES FURNISHED: Donna H. Stinson, Esquire Department of HRS Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 Mrs. Natalie Tiltens Fountain House Post Office Box 98 Fountain, Florida 32438
The Issue The central issue in this case is whether FMG met the qualifications to bid as set forth in the Invitation to Bid. Specifically involved is whether or not FMG met the requirement of having been engaged successfully in the business of food service management for at least a ten (10) year period prior to the date of the bid. As a secondary issue, FMG argued that the requirement is a minor irregularity which, by rule, should be waived.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, FMG organized and filed its Articles of Incorporation on November 8, 1985. The Florida corporation has remained active with all fees due the Secretary of State having been paid through December 31, 1987. On July 14, 1986, Thomas David Witten, became the majority shareholder and president of FMG. Mr. Witten's prior work experience included seventeen years of food service management with the Marriott Corporation followed by six years with Canteen. Mr. Witten left Canteen in 1985. While with Canteen, Mr. Witten had Successfully negotiated the contract at South Florida State Hospital for the food service management program. Canteen had obtained this contract after the bid process in 1981. On May 4, 1987, HRS mailed an Invitation to Bid (ITB) to obtain competitive prices for the food service management program contract to commence July 1, 1987. The ITB required the bidders to have engaged Successfully in the business of food service management for at least ten years prior to the date of the bid. The bidder was also required to furnish, as a part of its bid, a written statement evidencing its ability to accomplish the Specified work. As part of the written statement, the bidder was required to include information as to the immediate availability or ownership of the necessary equipment to perform the work, and the financial worth or reputability of the bidder together with the experience which the bidder has had in Successfully completing projects of a similar size, scope and responsibility The ITB also set forth specification; one of which was a performance and payment surety bond in the amount $250,000 to be furnished by the bidder to the hospital upon award of the contract. On May 14, 1987, HRS conducted a pre-bid conference. In attendance were representatives from Canteen, FMG, ServiceMaster, Food Service, and Service America Corporation (not a party to these proceedings). At this pre-bid conference no question was raised by FMG as to the qualification requiring ten (10) years experience in the business of food service management. The bid proposal submitted by FMG responded to the bidder's qualification by enclosing the curriculum vitae for members of FMG's professional staff. Documents regarding the experience of T. David Witten, Jimmy Blicharz, Williams Cox and Robert J. Trinley were included. Mr. Blicharz's career summary described thirteen years of operational and marketing management in the food service industry. Mr. Witten's curriculum vitae described twenty-three years of food service management experience as previously described. Mr. Cox's experience dated to 1966 and detailed food service activity as both food service director and dietician for various health care providers. Mr. Trinley's experience included over twenty-five years of administrative work with various health care providers. FMG described its bidder experience by listing work which had been performed by its individual employees at various institutions. In each of the instances, the experience noted was as a member of the staff of another company- not FMG. FMG, the company, was the bidder for bid number 595-530. HRS opened the proposals for bid number 595-530 on June 10, 1987. Additional information was requested from all bidders. On June 11, 1987, HRS requested the following information from FMG: Demonstration of ten (10) years of corporate history and corporate management of food services for institutions of Similar size and complexity. A written statement evidencing FMG's ability to accomplish the Specified work. FMG's reply to the HRS request maintained that the experience of its principal employees qualified FMG under the bid requirement Clearly, FMG had not successfully engaged in the business of food Service management for at least ten years prior to its bid proposal. HRS did not waive the ten year requirement. HRS, Food Service, ServiceMaster, and Canteen have agreed to readvertise bid number 595-530. The results of the bid tabulation for bid number 595- 530 were as follows: A. Food Service $103,979 B. ServiceMaster $110,000 C. FMG $ 96,900 D. Canteen $106,000 Four other potential bidders did not submit a proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That HRS enter a Final Order denying the protest filed by FMG. DONE and RECOMMENDED this 22nd day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1987. APPENDIX TO RECOMMENDED ORDER 87-3131BID, 87-3132BID, 87-3133BID Rulings on Petitioner, FMG's Proposed Findings of fact: Accepted, finding of fact paragraph 1 Accepted, finding of fact paragraph 2 Paragraphs 3 and 4 are accepted but deemed unnecessary since, at best, the described activities have only occurred within the last two years. Paragraph 5 is accepted, finding of fact paragraph 2. Paragraphs 6 and 7 accepted but are unnecessary to the resolution of the issues in this cause. Paragraph 8 is accepted in material part in finding of fact, paragraph 6. Paragraph 9 is accepted and addressed in material part in findings of fact paragraphs 2 and 6. Paragraph 10 is accepted as provided in findings of fact, paragraphs 2 and 6 the balance of paragraph 10 is deemed unnecessary. Paragraph 11 is accepted as addressed in finding of fact, paragraph 6. Paragraph 12 is rejected as unnecessary. Paragraph 13 is accepted only to the extent addressed in findings of fact, paragraphs 10 and 11. The balance is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as an argumentative conclusion outside the scope the issues to be resolved. Paragraph 15 is accepted in finding of fact, paragraph 14. Paragraph 16 is rejected . Mr. Witten's individual experience is not at issue. Mr. Witten, individually, was not the bidder. FMG chose to submit the proposal and waived its right to challenge the bid qualification requiring ten years experience. The conclusion reached in Paragraph 16 is contrary to the weight of the evidence and the law. Paragraph 17 is rejected. The conclusion reached is argumentative and contray to the weight of evidence and the law. Rulings on HRS' Proposed Findings of Fact: Accepted. Accepted. Accepted but deemed unnecessary to the resolution of the issues of this case. Accepted as addressed in finding of fact, paragraph 3. Accepted as addressed in finding of fact paragraph 3. Accepted as to date for incorporation otherwise rejected as unnecessary. Accepted. Accepted. Accepted. Paragraph 10 and 11 are addressed in material part in finding of fact, paragraphs 6, 7, 10, and 11. Paragraph 12 is accepted. Paragraph 13 is accepted to the extent that its alleges the requirement was considered indispensable, otherwise rejected as unnecessary or not supported by evidence. Paragraphs 14 and 15 are accepted. Rulings on Canteen's Proposed Findings of Fact: Accepted. Accepted. Accepted. Accepted but unnecessary to the resolution issues in this cause. Accepted. Accepted. Accepted but unnecessary. Accepted. Accepted. Accepted but unnecessary as the parties agreed the sole issue was whether or not FMG met the bid qualification requiring ten years of experience. Rejected. All parties had waived any right to challenge the ten years requirement. Rejected as argumentative Allegation that bid was done as corporation not individually is accepted. Accepted. Rejected. FMG's position is that qualification should be waived. Accepted. COPIES FURNISHED: William E. Williams, Esquire Fuller & Johnson, P.A. 111 North Calhoun Street Tallahassee, Florida 32302 Phil Dresch 2304 Parklake Drive, North East Building 9, Suite 290 Atlanta, Georgia 30345 Roy C. Young, Esquire Young, VanAssenderp, Varnadoe & Benton, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., Esquire District 10 Legal Counsel East Broward Boulevard Fort Lauderdale, Florida 33301-1885 Celeste Rossi, President Duval Street West, Florida 33040 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-700
