STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3389

)

MAE REVLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 10, 1983, in Orlando, Florida.

APPEARANCES

For Petitioner: Douglas E. Whitney, Esquire

District VII Legal Counsel Department of Health and

Rehabilitative Services

400 West Robinson Street, Suite 911 Orlando, Florida 32801

For Respondent: Richard H. Hyatt, Esquire

918 North Main Street Kissimmee, Florida 32741

ISSUES AND BACKGROUND

By administrative complaint dated November 23, 1982, the Respondent, Mae Revles, was charged with operating an adult congregate living facility without a license. At the formal hearing, the Petitioner called as witnesses Barbara Wavell, Barbara Witham-Petruney, and June Bryant, all employees of the Petitioner, the Department of Health and Rehabilitative Services. The Respondent testified on her own behalf and also called as a witness Mary Burks. The Petitioner offered four exhibits into evidence. Petitioner's Exhibits 1 and

2 were admitted without restriction as to their use, and Petitioner's Exhibits 3 and 4 were admitted over objection as being hearsay solely for the purpose of supplementing or explaining other admissible evidence in the record.

Counsel for the Petitioner submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted in this order, they were considered and determined to be irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. The Respondent previously held a license to operate an Adult Congregate Living Facility in the State of Florida. The Respondent, on January 26, 1982, voluntarily surrendered her license and has not since that time been licensed to operate an Adult Congregate Living Facility.

   
   

2. On November 3, 1982, an employee of HRS went to the boarding home operated by the Respondent at 551 Broadway, Kissimmee, Florida. On that date, Mr. Andrew Karr and Mr. Marcus Grady, both residents of the Respondent's boarding home, were found locked in their rooms. The doors were locked from the outside.

   
   

3. On November 3, 1982, Mr. Andrew Karr was disoriented as to time and space and needed nursing home custodial care. He could not respond appropriately to others present in the boarding home and was not able to bathe himself and had to be helped in bathing.

   
   

4. On November 3, 1982; another resident, Inez Smith, was disoriented. She was not capable of taking her prescribed medication without the help of another person. A lady who shared the room with Inez Smith gave her the medication.

   
   

5. On November 3, 1982, there were three other residents in the boarding home. These residents were oriented, lucid, and desired to remain in the boarding home.

   
   

6. Mr. Karr, prior to his removal in November, 1982, had been a resident of the boarding home since December, 1981. Mr. Grady had been a resident of the home for approximately five years prior to November, 1982, and Inez Smith had been a resident for three weeks prior to November, 1982.

   
   

   CONCLUSIONS OF LAW

   
   

7. Florida Statute 400.419 provides that the Department of Health and Rehabilitative Services is empowered to impose a fine upon a facility owner who is operating a facility within Chapter 400, Florida Statutes, without a license.

   
   

8. Respondent is charged with operating an Adult Congregate Living Facility without a license. Florida Statute 400.402(1) defines an Adult Congregate Living Facility as:

   
   

   1. "Adult congregate living facility," hereinafter referred to as "facility," means any building or buildings, residence, private home, boarding home, home for the aged, or other place, whether operated for profit or not, which undertakes through its ownership or management to provide, for a period exceeding

      24 hours, housing, food service, and one or more personal services for four or more adults, not related to the owner or operator by blood or marriage, who require such services. A facility offering personal services for fewer than four adults shall be within the meaning

      of this definition if it formally or informally advertises to or solicits the

      public for residents or referrals and holds itself out to the public to be an establishment which regularly provides such services.

      
      

9. Petitioner failed to prove that the Respondent was providing food service and one or more "personal services" as defined by Section 400.402(8), Florida Statutes, to four or more adults.

   
   

10. Petitioner also failed to prove that the Respondent was offering personal services for fewer than four adults and was formally or informally advertising or soliciting the public for residents, as provided by Section 400.402(1), Florida Statutes. There was also no evidence that the Respondent was holding out to the public that her establishment was one which regularly provided such services. Petitioner's Exhibits 3 and 4 were hearsay evidence on which no finding of fact could be made. There was no other nonhearsay evidence of the matters stated in those exhibits in the record.

    
    

11. Petitioner has failed to prove that Respondent was operating an adult congregate living facility as defined within Section 400.402, and, therefore, has failed to show facts establishing jurisdiction over the Respondent. The administrative complaint should, therefore, be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED:

That the Respondent be found not guilty of the violation charged and that the administrative complaint be dismissed.

DONE and ENTERED this 11 day of May, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1983.

COPIES FURNISHED:

Douglas E. Whitney, Esquire

400 West Robinson Street Suite 911

Orlando, Florida 32801

Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741

Mr. David H. Pingree Secretary

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003389

Orders for Case No: 82-003389