STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL HILEMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4571

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case on September 27, 1990

in Bradenton, Florida before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: John H. Schnering, Esquire

812 Eighth Avenue West Palmetto, Florida 34221

For the Respondent: Raymond R. Deckert, Esquire

DHRS

4000 W. Dr. Martin Luther King, Jr. Blvd., Rm. 520C

Tampa, Florida 33614 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner should be issued a license to operate an Adult Foster Home Care facility in Bradenton, Florida.

PRELIMINARY STATEMENT

By letter dated June 4, 1990, Dorothy Dexter, Program Administrator for the Department's District Six Aging and Adult Services Program Office, advised the Petitioner that his application for licensure of his adult foster care home, located at 915 51st Avenue E, Bradenton, had been denied on two grounds. These were (a), the maintenance of K-9 dogs in the area of his property in such a manner as to materially affect the health, safety or welfare of the residents, and (b), because of a "confirmed" report of exploitation concerning one F.S., a former resident in his facility. On July 3, 1990, John Schnering, Petitioner's counsel, requested a formal administrative hearing on the matter, and on July 25, 1990, the matter was referred to the division of Administrative Hearings for appointment of a

Hearing Officer. After Initial Order by the Division to the parties, and response thereto by Respondent, Department, the undersigned, on September 4, 1990, entered an Order consolidating this case for hearing with that involving Petitioner's challenge of the "confirmed" classification of the report of alleged exploitation on the said F.S. at his facility. The hearing was held as scheduled.

At the hearing, Petitioner testified in his own behalf

but introduced no exhibits. Respondent presented the testimony of Robert McLaughlin and Joanne MacWinney, Aging and Adult Protective Investigators with the Department; Joyce Kessler, Supervisor of the Department's Aging and Adult Services Division in District Six; Douglas Benfield, a rabies control administrator with the Manatee County Health Department; and William Bunker, Petitioner's next door neighbor. HRS exhibits 6 though 11, admitted in the consolidated hearing, were pertinent to the allegations in this case.

Subsequent to the hearing, Respondent submitted Proposed Findings of fact with regard to the allegations contained in this case. They have been ruled upon in the

Appendix to this Recommended Order. Petitioner had submitted argument in writing as regards this case and the two protests to the report of exploitation. This did not constituted Proposed Findings of Fact, but was, nonetheless, carefully reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, Petitioner was licensed as an Adult Foster Home Care facility located at 512 26th Avenue, West in Bradenton, Florida. At some time during the period of concern here, the facility was relocated to another building at 927 51st Avenue, East in Bradenton, and it was this new facility for which Petitioner applied for licensure on March 9, 1990.

   
   

2. In December, 1989, Joanne MacWinney, an Adult Protective Investigator, visited the residence in question operated by Mr. Hileman. While she was there, she observed a rust colored dog enclosed in a cage within the yard which,

   itself, was enclosed by a metal fence. The dog was pacing at the time, and she spoke with Mr. Hileman about it. He indicated it had been a trained K-9 attack dog but was defective and it was going to be removed from that location in the near future. He admitted that if the dog were to be let loose, it would attack and not back off. He also stated that evening, it was brought into the house past the residents, but would not be a hazard to them if they did not make any fast moves. Considering this to be a safety violation, Ms. MacWinney reported this.

   
   

3. In February, 1990, Ms. MacWinney again went to the Hileman home to see the dog. At this time, Petitioner indicated he had gotten rid of the dog she had seen on her previous visit, but he now owned another. This new dog was a control dog and Hileman gave a demonstration of this control. According to Ms.

   MacWinney, the dog was well behaved and she petted it, and she was impressed with its demeanor. She did not, therefore, request that the animal be removed. In fact, it is Department policy to encourage appropriate type dogs in homes where aged persons are being cared for.

   
   

4. Somewhat later, however, Ms. MacWinney received a report from the Manatee County Health Department that the dog had bitten a child on the property. The child was the Petitioner's four year old grandson. Petitioner relates that the bite was by a different animal at a different location and the child got mixed up. There being no evidence to contradict this, other than Mr. Benfield's report of April 4, 1990, which is third hand hearsay evidence, Petitioner's version of the incident is accepted.

   
   

5. On April 11, 1990, Ms. Kessler, the Supervisor of

   the Department's District Six Aging and Adult Services Division, wrote to Mr. Hileman and advised him of the information they had regarding the dog in question, subsequent to the rabies investigation report, and pointing out that not only had the dog allegedly bitten his grandson, but also had bitten someone else previously. By this letter, Ms. Kessler advised Petitioner to either remove the dogs from the premises or his license to operate the foster home would be terminated.

   
   

6. The animals were not moved, and on June 4, 1990,

   Mr. Hileman was notified by letter that his application for license at the new facility would be denied. This new license, if granted, would change the residential makeup of the facility. The new residents would be younger mental health and retardation clients, and the Department felt that under the circumstances, considering the nature of this type of client, volatile dogs such as Petitioner might maintain on the premises would not be consistent with the safety and welfare of the residents.

   
   

7. Ms. Kessler has had numerous conversations with Mr. Hileman in which he defended the dogs as nonviolent, but he has never explained why he wants that type of dog around a foster home. The answer is quite simple. He also operates a dog security service from the property on which the residence is maintained. In the opinion of the Department's representatives, the dogs present a risk to the proposed clientele. At the present time, it is the Department's position that even if the dogs were no longer located at the facility, the license would not be issued because Mr. Hileman has not shown the proper attitude and stability for issuance of a license. He is not cooperative with authority and the nature of his proposed clients, (aged and adult retards), is such that they need special treatment.

8. Mr. Benfield is the rabies control administrator with the Manatee County Health Department and his job is to

   investigate some 700 animal bites per year. In fulfilling this duty, he tries to determine if the bite is with or without provocation, and his experience indicates that most dog bites are as a result of provocation. In this course of his career, he has also investigated approximately 12 bites by K-9 trained dogs.

   
   

9. Mr. Benfield prepared three reports of dog bite regarding animals owned by an individual named Carl Hileman. The first, dated January 4, 1988, dealt with a black German Shepherd which allegedly bit a 7 year old female on the left leg in Bradenton. Even though the owner's name is the same, the individual in question is Petitioner's son, and the dog was not one owned by Petitioner. However, in March, 1990, a white German shepherd, owned by Petitioner, was alleged to have attacked a pedestrian on the walk outside Petitioner's place of business. The dog was reportedly unleashed, with Petitioner when it struck at the woman who, Petitioner claims, struck at the dog with her purse first, thereby provoking the animal. There is no evidence to support or explain the alleged attack, and under the circumstances, the only direct evidence on the matter comes from Petitioner. His version, therefore, is accepted. After this incident, Mr. Benfield quarantined the dog at Petitioner's residence, but when he went back 10 days later to release the animal, the house was vacant and the dog was gone. Petitioner had moved and had failed to notify the Health Department on the change in location of the animal. This was unlawful.

   
   

10. In April, 1990, a doctor, further unidentified, reported that the same dog had bitten Petitioner's 4 year old grandson. Again, the animal was quarantined at Petitioner's residence, but the quarantine was lifted when the dog was found to be free of disease. Petitioner claims the boy was confused and the bite was by a different animal at a different location. No evidence was presented to the contrary, and in light of the fact that Mr. Benfield is unable to determine if the bite was provoked or not, it is found that this incident is not relevant to the issues here.

    
    

11. According to Petitioner's neighbor, Mr. Bunker,

    the Petitioner's dogs are noisy and have threatened him whenever he works near the fence separating the properties. He has complained several times to the Petitioner about the continuing barking, but in response, Petitioner has claimed the dogs are highly trained, dangerous dogs who could tear the enforcement officer apart. At the present time, Mr. Hileman has 3 adult dogs and 5 puppies on the property. Bunker, though not an expert, is of the opinion that the white dog is vicious but it is found not to be so. He also claims Hileman has reported warned his wife of danger from the dogs and he may have done this.

    
    

12. Mr. Hileman has more dogs than those which are kept at the residence. The dangerous guard dogs are kept

    elsewhere and the only animals kept on the premises are those who are completely subject to his control. He claims they are no threat to anyone, even a visitor, and will only attack when

    directed to do so. He believes the white dog, to which Bunker referred and which was involved with the lady outside his business, is harmless. Any dogs at home which are less so are kept restrained at all times.

    
    

13. On October 9, 1989, at approximately 12:15 PM, the Florida Protective Services System received abuse report No. 89- 104860, pertaining to F.S.. This report dealt with alleged improper management of F.S.'s financial matters, (exploitation) during and subsequent to the time she was a resident at Petitioner's Genesis Home, located at 1375 East Hardin, in Bradenton. Specifically, the report alleged that Social Security checks intended for F.S.'s support and maintenance received between December, 1988 and May, 1989, by the Genesis Home, payee for her benefit, were not given to her or, subsequent to her transfer to another facility, to that facility for the payment of her upkeep. The report was investigated by Mr. McLaughlin and was, based on his inquiry, classified by him as "confirmed." A subsequent committee review of the classification conducted at District Six headquarters concluded the classification was correct and should not be changed. The District Administrator concurred. Genesis Homes is owned by Petitioner, Carl Hileman.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. The licensing of Adult Foster Home Care facilities is provided for and regulated under the authority of Section 400.619, Florida Statutes, which reads:

    
    

    1. Each adult foster home shall be licensed by the department prior to placement of any disabled adults or aged in the home.

    2. The department shall make an inquiry of the abuse registry on all adult foster home applicants.

    3. Access to a licensed adult foster home shall be provided at reasonable times for the appropriate officials of the department and the State Fire Marshal who are responsible for the development and maintenance of fire, health, sanitary, and safety standards to inspect the facility to assure compliance with such standards.

    4. The department may deny an applicant a license, or suspend or revoke a license, for any of the following reasons:

       1. An indicated report of abuse, neglect, or exploitation or conviction of a crime related to abuse, neglect or exploitation.

       2. An intentional or negligent act materially affecting the health, safety, or welfare of the adult foster home residents.

       3. A violation of the provisions of this part or rules adopted hereunder.

       
       

16. Respondent indicates its intent to deny Petitioner renewal of his license to operate a facility because of the "confirmed" report of exploitation of F.S., and because it contends the keeping of K-9 attack dogs on the premises constituted an intentional or negligent act affecting the health, safety, or welfare of the adult foster home residents.

    
    

17. Respondent admits that dogs are encouraged at homes of thisnature as a factor beneficial to the health and welfare of the elderly residents. It is these dogs, however, which the Department contends are dangerous, which in this case, justify a departure from the general policy and constitute a danger to the residents. If these animals had been shown to be dangerous, the Department's position would be well taken. However, the evidence of the animals' aggressiveness or hostility has not been shown by the evidence of record. In each case, the best evidence available has shown the alleged attack either was by a different animal or appeared to be provoked. Consequently, the Department has failed to establish that the keeping of the animals there constitutes either an intentional or negligent act materially affecting the health, safety, or welfare of the residents.

    
    

18. On the other hand, the Department has established by ample evidence that a report of exploitation by this Petitioner was received by the Department's abuse registry, was investigated and classified as "confirmed", and that that classification was upheld upon initial and secondary review. This constitutes proper grounds for denial under Section 400.619(4)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services denying

Petitioner's application for a license to operate an Adult Foster Home Care facility in Bradenton, Florida.

RECOMMENDED this 29 day of October, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29 day of October, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4571

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

FOR THE PETITIONER: None Submitted FOR THE RESPONDENT:

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted.

4. First and second sentences accepted. Third sentence

   is uncorroborated hearsay testimony and cannot, by itself, support a Finding of Fact.

5. Not supported by record.

6. Accepted, but the dog in question has been removed from the property.

7. First paragraph accepted and incorporated herein. Second paragraph accurately reflects Mr. Benfield's testimony, but he was not present at the scene. Issue resolved in favor of Petitioner.

8. Accepted.

9. Accepted.

COPIES FURNISHED:

John Schnering, Esquire 812 Eighth Avenue West Palmetto, Florida 34221

Raymond R. Deckert, Esquire Department of Health and

Rehabilitative Services Room 520C

4000 W. Dr. Martin Luther King, Jr. Blvd. Tampa, Florida 33614

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004571

Orders for Case No: 90-004571