STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARLEN BRADDY, d/b/a )

EARLEN'S ACLF HOME, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3025

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida on October 26, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Petitioner's license to operate the Adult Congregate Living Facility in question should be renewed.

APPEARANCES

For Petitioner: Gardner Beckett, Esquire

123 8th Street North

St. Petersburg, Florida 33701

For Respondent: Edward Haman, Esquire

Department of Health and Rehabilitative Services

Office of Licensure and Certification 7827 North Dale Mabry Highway

Tampa, Florida 33614 BACKGROUND INFORMATION

By letter dated April 15, 1988, Connie Cheren, Director of the Department of Health and Rehabilitative Service's, (DHRS), Office of Licensure and Certification, (OLC), notified Petitioner, Earlen Braddy, that her application for renewal of license to operate an Adult Congregate Living Facility, (ACLF), was denied. On May 8, 1988, Ms. Braddy indicated in writing her intention to appeal that decision which was considered by the Department as a Request for Formal Hearing and on June 15, 1988, forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.

Hearing Officer Diane Tremor, on August 3, 1988, set the case for hearing on October 27, 1988 and by Order of even date, required the parties to confer and, inter alia, file a Pre-Hearing Stipulation by October 17, 1988. No such Stipulation was filed. However, on October 21, 1988, due to a reassignment of hearing officers, an Amended Notice of Hearing, entered with the concurrence of the parties, and setting the hearing for October 26, 1988, was filed herein.

The case was heard by the undersigned as scheduled.

At the hearing, Petitioner testified in her own behalf and presented the testimony of John R. Schaub, her accountant. She also introduced Petitioner's Exhibit 1. Respondent presented the testimony of five of its own employees from the Tampa OLC. They were John C. Morton, Human Services Program Director; Diane Cruz, an inspector; Tamie Smith, an inspector; Mary Cook, a nutritionist and inspector; and Robert L. Scharnweber, a fire protection specialist and inspector. Respondent also introduced Respondent's Exhibits A and B.

No transcript of the hearing was furnished. Counsel for the Respondent submitted a Proposed Recommended Order containing Proposed Findings of Fact which have been ruled upon in the Appendix to this Order. Counsel for Petitioner did not submit Proposed Findings of Fact but only a letter in response to the Department's submittal.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained in Ms. Cheren's April 15, 1988 letter of denial of renewal, Petitioner, Earlen Braddy operated Earlen's ACLF home at 2840 47th Avenue South, St. Petersburg, Florida.

   
   

2. Respondent, DHRS, is the state agency responsible for licensing ACLF's in Florida.

   
   

3. Ms. Braddy has operated the ACLF in question at the current location for about four years during which time she has had as many as five residents at one time. Currently, and for the past year, she has had only three residents in the facility which she also occupies as her home. One current resident has been with her since she opened.

   
   

4. On December 4 and 9, 1986, while Ms. Braddy was operating her ACLF in a licensed status, her facility was inspected by representatives of Respondent's Office of Licensure and Certification on its yearly survey. During the survey, the inspectors found several deficiencies, all of a Class III, (least serious) category, in such areas as Administration; Management and Staffing Standards, (6 deficiencies); Admission Criteria and Resident Standards, (3 deficiencies); Food Service, (12 deficiencies); Physical Plant, (5 deficiencies); Fire Safety, (1 deficiency); and Other Administrative Rule Requirements, (4 deficiencies). Though most deficiencies related to the failure to keep or provide the surveyors with the paperwork required to be kept by statute and the rules of the Department, some of the deficiencies related to resident care.

   
   

5. These deficiencies were identified to Ms. Braddy in person by the inspectors at the time of discovery and again at the out-briefing. She was also advised as to how to correct them and where to secure assistance in doing so, if necessary. Nevertheless, and notwithstanding the uncorrected deficiencies identified in the December, 1986 survey and the March, 1987 follow-up, the Petitioner's license was renewed in April, 1987.

   
   

6. Follow-up surveys were conducted in March, June, and October, 1987, at the next annual survey in 1988, and at its follow-ups. While some deficiencies originally identified were thereafter corrected, many were not.

   
   

7. Another annual survey of the facility was conducted on February 16, 1988, prior to the issuance by the Department of the yearly renewal license. At this survey, again, numerous Class III deficiencies were identified including: Administrative, (5 deficiencies); Admission, (3 deficiencies); Food Service, (9

   deficiencies); Physical Plant, (1 deficiency); Fire Safety, (3 deficiencies); and Other Administrative, (3 deficiencies). Many of these were carried over uncorrected from the previous year's survey, (December, 1986) and its follow- ups, and some were new. Some of the former remained uncorrected through the June, 1988 follow-up to the February, 1988 survey.

   
   

8. In August, 1988, the Department filed three Administrative Complaints against the Petitioner seeking to impose monetary civil penalties against her. All three resulted in Final Orders being entered. In the last of the three, Petitioner was alleged to have committed five violations of the statutes and Departmental rules, all of which relate to Petitioner's alleged failure to "provide or make available for review documentation" in five certain areas. Petitioner and Respondent agree that these areas are those primarily involved in the uncorrected deficiencies outlined in the survey reports and upon which the Department relies to support denial of Petitioner's renewal.

   
   

9. Petitioner readily agrees that the deficiencies cited by the Department both in the survey reports and in the Administrative Complaints existed at the time of identification and, in many cases, for some time thereafter. While Petitioner now claims all deficiencies have been corrected, her accountant, Mr. Schaub, indicates that at least one, that relating to the failure to document and keep on file scheduled leisure time, had not been accomplished previously and was not now being accomplished. As to the others, those requirements which were not being complied with at the time of the surveys are now being met. Some identified deficiencies were not actually defects. The documentation was being kept, but due to Petitioner's inability to keep up with it, was not made available to the surveyors.

   
   

10. Mr. Schaub is convinced that Petitioner has a paperwork problem and needs help with it. She spends her time taking care of the residents without much help and does not keep up with the required paperwork. As he describes it, she is being "choked with red tape" due to the paperwork requirements imposed by the Department whose rules do not differentiate much in the requirements for record keeping between large facilities and very small ones as this is. In his opinion, however, and also in the opinion of the surveyors who visited the facility, the residents appeared to be clean, appropriately dressed, well fed, and content.

    
    

11. Ms. Braddy contends that at the present, all the actions the rules require are being taken and while in the past she may not have done everything correctly, she has made the effort to comply with the instructions she received from the Department. She has recently hired an individual to help her and stay with the residents while she is gone. Before he came to work, she received some assistance from her children who, without pay, helped her from time to time.

    She believes her facility is now operating within the Department's requirements and there has been no survey conducted since June, 1988, to indicate whether this true or not.

    
    

    CONCLUSIONS OF LAW

    
    

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

13. Section 400.417, Florida Statutes, governs the renewal of ACLF licenses and specifically provides:

    
    

    1. Annual licenses issued for the operation of the facility, unless sooner suspended or revoked, shall expire automatically 1 year from the date of issue... Ninety days prior to the expiration date, an application for renewal shall be submitted to the department. A license shall be renewed upon the filing of an application ... if the applicant has first met the requirements established under this part and all rules promulgated hereunder.

       (4) A conditional license may be issued to an applicant for license renewal when the applicant fails to meet all standards and requirements for licensure...

       
       

14. Under the provisions of Section 400.414, Florida Statutes:

    
    

    1. The department may deny, revoke, or suspend a license or impose an administrative fine...

    2. Any of the following actions by a facility or its employees shall be grounds for action by the department against a licensee.

       * * *

       (d) Multiple and repeated violations of this part or of minimum standards or

       rules adopted pursuant this part...

       
       

15. Once an applicant has been licensed, the annual renewal of that license is generally a mandatory, ministerial act, and if violations occur, the licensing agency must resort to formal disciplinary proceedings which may result in an administrative fine, license suspension or revocation. Vocelle v. Riddell, 119 So.2d 809 (Fla. 2DCA 1960); Sopp v. Florida Construction Industry Licensing Board, 353 So.2d 174 (Fla. 4DCA 1977).

    
    

16. In City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla. 2DCA 1978), the Court specifically recognized that a licensee has a property right in the renewal of a license which he cannot be deprived of absent the requisites of due process.

    
    

17. This does not mean that the department must always renew an ACLF license when there are established violations of Chapter 400, Florida Statutes, or applicable administrative rules. The Court in Vocelle, supra, uses the term "generally" in describing renewal as a mandatory, ministerial act, thereby recognizing that it is not always so. The statute in issue here calls for renewal if the applicant "first" meets the requirements for licensure. Contra to the opinion taken by another Hearing Officer in Joy Family Living Boarding Home v. Department of Health and Rehabilitative Services, DOAH Case Number 88- 3036, Recommended Order dated November 30, 1988, the term "first" is construed here to mean "prior to renewal" and not, as in that case, "back to the initial qualification."

18. It being recognized, then, that renewal is not always mandatory and merely ministerial, if the department, after considering the application for renewal in light of the applicant's performance while licensed, determines that because of repeated violations by the applicant the applicant no longer meets the requirements for licensing and it is not appropriate, it has the burden of establishing that these alleged violations did, in fact, occur. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 3350 (Fla. 1DCA 1977); Florida Department of Transportation v. JWC Co., Inc., 396 So.2d 778, 788 (Fla. 1DCA 1981).

    
    

19. Here the evidence demonstrates continuing and ongoing violations of both the provisions of Section 400, Florida Statutes, and the rules of the department governing the operation of ACLFs. In the instant case, Petitioner's operation was first determined to be flawed in the annual 1986 survey, as a result of which, numerous Class III violations were established. Many of these were not corrected by the time of the 1987 survey a year later even though they had been repeatedly identified at the several follow-up inspections in the interim. Nonetheless, even after the identification of the problem areas in December, 1986, and the failure to correct many of them prior to the March, 1987 follow-up inspection, the department renewed Petitioner's license in April, 1987. It was only when one of the original discrepancies uncovered in the December, 1986 survey, along with numerous others identified in the interim, were found to remain uncorrected as of February, 1988, with new violations as well, that the department acted by denying the application for renewal in April, 1988. Not until August, 1988, however, was any disciplinary action as called for in Section 400.414, Florida Statutes, taken and this action did not include either suspension or revocation. Action taken several months after the denial in question here, however, is not relevant or pertinent to an analysis of the propriety of the department's action in April, 1988.

    
    

20. This action was taken, however, to demonstrate that discipline of the licensee was both appropriate and called for.

    
    

21. Though denial is, therefore, authorized here, one must question whether in this case, it would be appropriate. As the department admits, by far the preponderance of the violations involved herein related to the Petitioner's failure to keep proper paper work or, if kept, to provide it to the inspectors, and it is not disputed that by the time of the hearing herein, these were, for the most part, corrected. It is also undisputed, and in fact, admitted by the department's inspectors, that the residents of Petitioner's ACLF appeared well fed and well cared for. As is stated in Section 400.401(2), Florida Statutes, the purpose of the Adult Congregate Living Facilities Act is, inter alia, to provide for the health, safety, and welfare of residents of ACLFs. It would appear that notwithstanding the discrepancies cited here, this purpose is being met.

    
    

22. It should also be noted that the statute provides for issuance of a conditional license upon renewal when the applicant fails to meet all standards and requirements for licensure. The department had that option available to it at the time of renewal in 1987 but failed to utilize it. Now, having overlooked the discrepancies once, it seeks to reject this option again and deny renewal when it would appear that correction of the deficiencies to keep the facility open to serve its needed constituency would be more effective management of resources.

RECOMMENDATION

Based on the foregoing Finding of Facts and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner, Earlen Braddy, be issued a conditional license to operate an Adult Congregate Living Facility for a period of 6 months at which time, if all deficiencies are not corrected, the application for renewal be denied.

RECOMMENDED this 12th day of December, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 12th day of December, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3025

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

BY THE PETITIONER

None submitted.

BY THE RESPONDENT

1. - 7. Accepted and incorporated herein

1. Accepted and incorporated herein though the problem appears to be more a question of inability rather than unwillingness.

2. Rejected as contra to the state of the evidence. Mr. Schaub indicated she would continue to have paperwork problems but with help could master the problem

3. Not a Finding of Fact but a comment of the state of the evidence.

COPIES FURNISHED:

Gardner Beckett, Esquire

123 8th Street North

St. Petersburg, Florida 33701

Edward Haman, Esquire Office of Licensure and

Certification Legal Counsel Department of Health and

Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614

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 Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 88-003025

Orders for Case No: 88-003025