STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, ) CASE NO. 87-2988

) 87-2989

vs. )

) NANCY BOLES, d/b/a HAPPY ) DAYS GUEST RANCH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on September 29, 1987, at Plant City, Florida.

APPEARANCES

For Petitioner: Gaye Reese, Esquire

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Robert M. Austin, Esquire

Post Office Box TT

Plant City, Florida 34289

By letter dated April 28, 1987, the Department of Health and Rehabilitative Services (DHRS), Petitioner in Case No. 87-2988, advised Nancy Boles d/b/a Happy Days Guest Ranch, Respondent, that her application for renewal of her license as an Adult Congregate Living Facility (ACLF), was denied for reasons contained in a confidential report received from Adult Protective Services (APS), and that all residents of the facility must be relocated within thirty days.

By letter dated March 11, 1987, DHRS, Petitioner in Case No. 87-2989, advised Nancy Boles d/b/a Happy Days Guest Ranch, Respondent, that a moratorium on admissions to her ACLF was imposed effective March 11, 1987. As grounds therefor, the confirmed abuse of a resident of the facility is alleged.

By letter dated April 15, 1987, Respondent, by and through her attorney, requested an administrative hearing to contest DHRS's proposed actions and this hearing followed.

At the hearing, Petitioner called two witnesses, Respondent testified in her own behalf, and six exhibits were offered into evidence. Respondent's objection to Exhibits 5 and 6 was sustained and ruling on objections to Exhibits 2, 3 and 4 was reserved. These three exhibits are depositions of witnesses who are elderly and infirm. Exhibit 2 and 3 are depositions taken and admitted into evidence at the criminal trial of Respondent for battery of a resident of the

ACLF. Respondent was notified of the taking of those depositions and she was represented by her attorney at the taking of those depositions. Pursuant to Section 9O.804(2)(a), Florida Statutes, that testimony is admissible here as the Respondent had the opportunity and a similar motive to develop those witnesses' testimony by direct, cross or redirect examination.

Exhibit 4 is the testimony of the witness deposed in Exhibit 3 taken September 21, 1987, for use in these proceedings. Respondent was denied the right to appear at the taking of this deposition. Objection to Exhibit 4 was based on this denial of the constitutional right to confront witnesses against her. Objection to Exhibit 4 is now sustained.

Proposed findings were not timely submitted by the parties.

FINDINGS OF FACT

1. Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding.

   
   

2. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF.

   
   

3. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied.

   
   

4. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case.

   
   

5. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool."

6. Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.

   
   

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Once a license has been issued to a person demonstrating the required qualifications, renewal of such a license is a ministerial act. Good cause for disapproval of a renewal is necessary to support such action. Accordingly, in a procedure where the agency is denying renewal of a license, the burden is on the agency to show the applicant is no longer qualified for the license. For all practical purposes, this is similar to revocation of an existing license. In such case, the agency has the burden to prove, by clear and convincing evidence, that the applicant is not qualified for the renewal sought. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

8. Objection to the admission of Exhibit 5 on the grounds of hearsay was sustained. A second objection made was that the document was not complete because of deletions. petitioner contended that this exhibit was admissible as an official record. The fact that such a document is required to be submitted is accepted and admissible as an official record; however, the hearsay statements contained therein are not admissible over objection. The reason for this ruling is evident. Here, the individual who prepared Exhibit 5 was present and testified at these proceedings. Testimony regarding what this witness was told by persons witnessing the event complained of is clearly hearsay and inadmissible over objection. Such objectionable material cannot be admitted into evidence by the simple expedient of offering the report into evidence as an official record. The basis for all exceptions to the hearsay rule is the inherent reliability of the evidence. No such reliability exists than a report such as Exhibit 5 is prepared by an investigator from what others told her they saw. Even if Exhibit 5 could overcome the hearsay objection, deletions in the copy offered into evidence are sufficient to clearly label the document offered as not a true copy of the original.

   
   

9. Section 400.414, Florida Statutes, provides, inter alia, the following action shall be grounds for revoking a license:

   
   

   An intentional or negligent act seriously affecting the health, safety or welfare of a resident of

   the facility.

   
   

   Evidence of such an act was not shown.

   
   

10. It appears that the moratorium and denial of renewal was based on allegations of abuse of a resident. Protection of aged and disabled persons from abuse is covered in Chapter 415, Florida Statutes. Section 415.102 defines abuse as:

    
    

    treatment under which an aged or disabled person is deprived, or allowed to be deprived, of necessary treatment, habilitation, care,

    sustenance, clothing, shelter, supervision, or medical service, essential to his well- being; is permitted to live in an environment

    in which such deprivation causes, or is likely to cause, impairment of physical or emotional health; or is subject to physical or psychological injury.

    
    

11. Considering all the evidence presented, even giving greater weight than warranted to the testimony of Petitioner's elderly witnesses, the evidence failed to show that Simmons was subjected to physical or psychological injury. Certainly, the evidence failed to establish such injury by clear and convincing evidence.

    
    

12. From the foregoing it is concluded that Petitioner failed to prove, by clear and convincing evidence, that Nancy Boles d/b/a Happy Days Guest Ranch, subjected Fowler Simmons to physical abuse as defined in Section 415.102, Florida Statutes, or that she committed an intentional or negligent act seriously affecting the health, safety or welfare of a resident of the ACLF so as to constitute grounds for revocation of license or refusal to renew such license. It is

RECOMMENDED that the moratorium on admission of clients to Happy Days Guest Ranch be lifted and that Nancy Boles' license to operate this ACLF be renewed.

ENTERED this 20th day of October, 1987, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1987.

COPIES FURNISHED:

Gaye Reese, Esquire

7827 N. Dale Mabry Highway Tampa, Florida 33614

Robert M. Austin, Esquire

P. O. Box TT

Plant City, Florida 34289

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

1. S. Power Agency Clerk

   Department of Health and Rehabilitative Services 1323 Winewood Boulevard

   Tallahassee, Florida 32399-0700

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

   
   

   DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

   
   

   Petitioner,

   
   

   vs. CASE NO. 87-2988

   87-2989

   NANCY BOLES, d/b/a HAPPY DAYS GUEST RANCH,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto. Exceptions to the Recommended Order were filed by Petitioner, Department of Health and Rehabilitative Services.

   
   

   RULING ON EXCEPTIONS FILED BY HRS

   
   

   1. Exception number one (1) is granted in that the agency's function in issuing and renewing licenses is not a ministerial function for it entails "special discretion, judgment, and skill" on the part of the department, and not merely the execution of duty involving fixed and designated facts.

      
      

   2. The Hearing Officer's findings of fact are entitled to the same weight as the verdict of a jury. Gruman vs. State, 379 So2d 1313 (2nd DCA 1980). It

      is the Hearing Officer's function to resolve conflicts in the evidence, judge the credibility of witnesses, draw the permissible inferences from the evidence and make findings of fact and the agency may not reject a finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz vs. Department of Business Regulation, 475 So2d 1277 at 1281 (Fla. 1st DCA 1985).

      
      

      HRS concedes that the force used to perpetrate a criminal battery need not be sufficient to cause injury to the victim, Section 784.03(1)(a), Florida Statutes; thus, to establish abuse on the basis of a battery, it was necessary to prove that the victim was physically or psychologically injured by the battery. Section 415.102(1), Florida Statutes.

      
      

      The Hearing Officer found that Ms. Boles slapped the victim very lightly with the palm of her hand. In its exceptions HRS did not contend that there was any evidence that the victim was injured; instead, it maintained that proof of a battery was enough. Exception number two (2) is denied.

      
      

   3. Exception number three (3) is denied for the reasons given in the ruling on exception number two (2).

      
      

   4. In this case the basis for the license action was a report of adult abuse, even though the report was not entered on the abuse registry. The legislature has mandated that the standard of proof required to establish a confirmed report of abuse is the "preponderance" test. Section 415.103(3)(d)(5), Florida Statutes (1987). The-Supreme Court in Ferris vs. Turlington, 510 So2d 292 (Fla. 1987) did not hold that the standard of proof to be used is a matter of constitutional dimension; thus, Ferris is not dispositive here. The exception is granted.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the rulings on the exceptions and where inconsistent with the following:

All relevant evidence is admissible in administrative hearings, but uncorroborated hearsay is not sufficient to sustain a finding of fact unless the hearsay would be admissible over objection in a judicial proceeding. Section 120.58(1)(a), Florida Statutes; Section 22I-6.26(3), Florida Administrative Code.

The Hearing Officer ruled that be abuse assessment format, the written investigation report by HRS, was admissible as an official record to show that HRS had complied with its statutory duty to investigate, but that the findings of the report were incompetent hearsay. HRS rejects this ruling on the authority of Section 90.803(8), Florida Statutes and Allen vs. Childress, 448 So2d 1220 (Fla. 4th DCA 1984).

In Allen the issue was whether the father was fit to be awarded custody of his child. The father resided in Tennessee, and the trial court ruled that a five page report prepared by the Tennessee Department of Human Services on the

issue of the fitness of the father was inadmissible hearsay. The Tennessee report concluded the father was unfit and even dangerous to his children. The District Court held that the trial court erred in refusing to admit and consider the Tennessee report while the District Court rested its decision on Section 61.20, Florida Statutes, which provides that such reports are admissible over hearsay objection, the reasoning is equally applicable to admission under Section 90.803(8), Florida Statutes. See also Volume 1, Florida Evidence, Spencer A. Gard, page 285, Comment on Public Records and Reports Exceptions To Hearsay "...reports required by the nature of the office or by statute to be made and kept as public records are admissible in evidence not only to prove their contents, but also to prove the truth of the facts, conditions, occurrences, and findings which they relate."

It is also noted that if a proper predicate were established such a report could be admissible, at least in part, to identify an individual as the perpetrator of an act of abuse. Section 90.801(2)(c), Florida Statutes.

The basis for the decision in this case to deny license renewal was an alleged act of abuse by respondent in violation of Section 415.102(1). An element of such abuse is physical or psychological injury to the victim.

Because there is no evidence in the present case that the victim of the slap was injured, abuse was not established.

Based upon the foregoing, it is ADJUDGED, that

1. Nancy Boles' license to operate an ACLF be renewed and,

   
   

2. The moratorium on admissions be lifted.

DONE and ORDERED this 2nd day of December 1987, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Assistant Secretary for Programs

COPIES FURNISHED:

K. N. Ayers Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Gaye Reese, Esquire

7827 North Dale Mabry Highway Tampa, Florida 33614

Robert M. Austin, Esquire Post Office Box TT

Plant City, Florida 34289

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 4th day of December, 1987.

R. S. Power, Agency Clerk Assistant General counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2351

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 HRS, AND A SECOND COPY, ALONG WITH AILING 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 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.

Docket for Case No: 87-002988

Orders for Case No: 87-002988