STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1377

)

LOUIS E. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer, with the Division of Administrative Hearings, on November 18, 1987, in St. Petersburg, Florida. The issue for determination in this proceeding is whether an administrative fine in the amount of $1,000.00 should be imposed against the respondent for operating an adult congregate living facility without a license.

APPEARANCES

For Petitioner: Gaye Reese, Esquire

Office of Licensure and Certification 7827 North Dale Mabry Highway

Tampa, Florida 33614

For Respondent: Louis E. Smith

6060 Shore Bloulevard South Gulfport, Florida 33707

INTRODUCTION

By an Administrative Complaint dated February 27, 1987, respondent Louis E. Smith was charged with operating an adult congregate living facility without having first obtained a license in violation of Chapter 400.407, Florida Statutes. In support of this charge, respondent presented the testimony of Diane Cruz, a program analyst with the Office of Licensure and Certification, and its Exhibits 1 through 6 were received into evidence.

Respondent Louis E. Smith testified in his own behalf, but offered no documentary evidence.

Subsequent to the hearing, the petitioner submitted proposed findings of fact and proposed conclusions of law. To the extent that the proposed factual findings are not incorporated in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. On November 20, 1985, License Number B03139 was issued to Swan Care Homes II to operate as an adult congregate living facility. This license was issued to Wayne Veccitto, who was a tenant of respondent and his wife. The expiration date of the license was May 19, 1986.

   
   

2. Due to the facts that Mr. Veccitto had not made his rental payments in several months and the property was falling into disrepair, respondent evicted Mr. Veccitto on or about May 1, 1986. Respondent and his wife operated the facility during the month of May, 1986, and advertised for someone else to live in the facility and operate it. Neither the respondent nor his wife desired to personally operate the facility. According to the respondent, the Millers responded to his advertisement and began operating the facility around June 1, 1986.

   
   

3. On June 9, 1986, the petitioner received an application dated June 6, 1986, from respondent's wife to operate the subject property as an adult congregate living facility. By letter dated June 16, 1986, respondent's wife was advised that her application for initial license was incomplete and that no further action on the application would be taken until the requested information was received. This letter further advised that it was unlawful to offer adult congregate living facility services or to advertise such services without having obtained a valid license. Respondent was aware of this correspondence but was not concerned because he knew the Millers were assuming the operation of the facility.

   
   

4. On June 27, 1986, a representative of the petitioner conducted a complaint investigative visit to the facility. At that time, there were residents at the facility and a couple in charge of the facility who stated that they were working for the respondent. There was no valid license for the facility on June 27, 1986.

   
   

5. By letter dated July 2, 1986, and received by the petitioner on July 7, 1986, respondent requested petitioner to rescind or void his application for licensure and to accept an enclosed application from Dorothy V. Miller for the same facility.

   
   

6. The respondent and his wife have owned and/or operated approximately 12 adult congregate living facilities in Michigan and 5 or 6 in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Administrative Complaint charges respondent with operating an adult congregate living facility on June 27, 1986, without having first obtained a license from the petitioner authorizing such operation. The facts adduced at the hearing by the petitioner, to which respondent took no issue, fully support the finding that respondent was responsible for the operation of an adult congregate living facility for a period of time around and including June 27, 1986, without a valid license from the Department of Health and Rehabilitative Services. This constitutes a violation of Section 400.407(1)(a), Florida Statutes.

8. The purpose of requiring a valid license is to ensure that the licensee and the facility comply with the minimum standards to meet the needs, health, safety and welfare of the residents. As an owner or operator of other facilities in Florida, and having been specifically notified by the petitioner that it was unlawful to operate without a license, it is concluded that an administrative fine in the amount of $1,000.00 is appropriate for this violation of Section 400.407(1)(a), Florida Statutes.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent Louis E. Smith be found guilty of violating Section 400.407(1)(a), Florida Statutes, and that an administrative fine of

$1,000.00 be imposed.

Respectfully submitted and entered this 1st day of February, 1988, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988.

APPENDIX (Case No. 87-1377)

The proposed findings of fact submitted by the petitioner have been accepted and/or incorporated in this Recommended Order, except as noted below:

2. Last sentence rejected as immaterial.

5. Reference to Exhibit 2 is rejected. The proper Exhibit Number is 6. Also, no competent evidence to support the statement that Exhibit 6 was rejected by HRS.

COPIES FURNISHED:

Gaye Reese, Esquire Office of Licensure and

Certification

7827 N. Dale Mabry Hwy. Tampa, Florida 33614

Louis E. Smith

6060 Shore Blvd. South Gulfport, FL 33707

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-001377

Orders for Case No: 87-001377