STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET STAGGERS d/b/a )

MARGARET STAGGERS LODGE, )

)

Petitioners, )

)

vs. ) CASE NO. 86-1106

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice; the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 15, 1986 in Miami, Florida. The parties requested and leave was afforded through March 1, 1987, to submit memoranda supportive of their respective positions. Although the parties requested leave to submit memoranda, none were submitted.

APPEARANCES

For Petitioner: Witlin & Witlin

Ira M. Witlin Esquire

17555 South Dixie Highway, Suite 10

Miami, Florida 33157

For Respondent: Dennis Berger Esquire and

Michael O. Mathis, Esquire

Office of Licensure & Certification Department of Health and

Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32231

ISSUED PRESENTED

Whether or not Petitioner, Margaret Staggers, is eligible for an initial license to operate an Adult Congregate Living Facility (ACLF).

INTRODUCTION AND BACKGROUND

Margaret Staggers Lodge, an ACLF located at 1205 Northwest 12th Street, Homestead, Florida was formerly licensed for a capacity of four (4) residents for the year ending June 16, 1984. On January 17, 1984, Respondent, Department of Health and Rehabilitative Services, received a complaint that Petitioner had neglected a resident named Clara Pearson. On January 20, 1984, Respondent

received a second complaint that Petitioner had also neglected a resident named Bertha Davis. Petitioner's investigators investigated said allegations and on June 21, 1984 issued a Statement of Deficiencies (investigative report) citing the violations found as a result of the investigation.

Subsequent to the investigation, Respondent determined that it was appropriate to impose a moratorium on admissions to Petitioner's facility and to deny a pending relicensure application filed by Petitioner. In addition, Respondent imposed an administrative fine of $500 for each offense cited in the investigative report.

FINDINGS OF FACT

By letter dated February 3, 1986, which was sent certified, returned receipt requested, Petitioner was advised that her application for an initial license to operate an ACLF was denied based on Respondent's determination that the facility Administrator, Margaret Staggers, was not of suitable character to operate an ACLF pursuant to Sections 40-0.414(2)(a) and (b), Florida Statutes.

Petitioner was specifically advised that the determination was based on the fact that on September 16, 1985, Margaret Staggers pled no contest to a felony charge of adult abuse, pursuant to Section 827.09(1), Florida Statutes, and was convicted of the offense. (State v. Margaret Staggers, Case No. 85-8490).

In fact, Petitioner entered a plea of nolo contendere to the felony charge of adult abuse and adjudication was withheld.

The thrust of Petitioner's challenge to denial of her license application is that since adjudication was withheld, there was no conviction and therefore for Respondent to state that she was convicted, as a basis for denials was improper.

It is true, as Petitioner urges, that she pled no contest to the charge of adult abuse and adjudication was withheld rather than the stated reasons that Petitioner was convicted of the charge of adult abuse. However, Respondent also alleges in its denial letter dated February 3, 1986, that the Department determined that Petitioner's initial license to operate an ACLF was being denied based on its determination that Petitioner is not of suitable character to operate an ACLF pursuant to Sections 400.414(2)(a)(b), Florida Statutes.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Section 120.57(1), Florida Statutes.

   
   

2. The parties were duly noticed pursuant to the notice provision of Chapter 120, Florida Statutes.

   
   

3. The authority of the Respondents Department of Health and Rehabilitative Services is derived from Chapter 400, Part II, Florida Statutes and Rule Chapter 10, Florida Administrative Code.

   
   

4. Section 400.414, Florida Statutes, authorizes the Respondents Department of Health and Rehabilitative Services, to deny a license or impose an administrative fine on the following grounds:

   
   

   (2)(a) a negligent act seriously

   affecting the healthy safety or welfare of a resident of the facility.

   (b) determination by the Department that the facility owner is not of suitable character and competency to provide continuing adequate care to the residents.

   
   

5. Competent and substantial evidence was offered herein to establish that Petitioners based on entry of a plea of nolo contendere to the charge of adult abuse, is not of suitable character and competency to provide continuing adequate care to residents of an ACLF within the purview of Section 400.414(2)(b), Florida Statutes. In this regards consideration was given to the acts and conduct which formed the basis for the charge of adult abuse and Petitioner's plea of nolo contendere to that charge.

RECOMMENDATION

Based on the Foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Fina1 Order denying Petitioner's application for licensure to operate an Adult Congregate Living Facility.

RECOMMENDED this 23rd day of July, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

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 23rd day of July, 1987.

COPIES FURNISHED:

Michael O. Mathis, Esquire Office of Licensure &

Certification Department of HRS Post Office Pox 210

Jacksonville, Florida 32231

Ira M. Witlin Esquire Suite 107

17555 South Dixie Highway Miami, Florida 33157

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-001106

Orders for Case No: 86-001106