STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOSSET HOME FOR THE ELDERLY, )

)

Petitioner, )

)

vs. ) Case No. 99-2985

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 10, 1999, in Jacksonville, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William Roberts, Jr., Esquire

816 Broad Street

Jacksonville, Florida 32202-4754

For Respondent: Michael O. Mathis, Esquire

Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for an initial license to operate an Assisted Living Facility should be granted.

PRELIMINARY STATEMENT

This matter began on June 8, 1999, when Respondent, Agency for Health Care Administration, issued a letter advising

Petitioner, Fosset Home for the Elderly, that its application for an initial license to operate an Assisted Living Facility had been denied on the ground that its owner had "pled guilty to operating an unlicensed Assisted Living Facility and [was] placed on 24 months' probation," and that Petitioner "must continue to meet the special conditions of [its] sentencing guidelines which prohibit [Petitioner] from operating or maintaining an Assisted Living Facility."

Petitioner denied the allegations and requested a formal hearing under Section 120.569, Florida Statutes, to contest the agency's preliminary decision. The matter was referred by Respondent to the Division of Administrative Hearings on June 30, 1999, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated July 27, 1999, a final hearing was scheduled on August 10, 1999, in Jacksonville, Florida.

At the final hearing, Petitioner presented the testimony of its owner, Shirley I. Fosset. Also, it offered Petitioner's Exhibits 1 and 2. Both exhibits were received in evidence.

Respondent presented the testimony of Lillie McQueen, an agency health facilities consultant. Also, it offered Respondent's Exhibits 1-9. All exhibits were received in evidence.

The Transcript of the hearing was filed on August 19, 1999.

Proposed Findings of Fact and Conclusions of Law were filed by

Respondent on September 1, 1999, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this licensure dispute, Petitioner, Fosset Home for the Elderly, seeks an initial license to operate an Assisted Living Facility (ALF) in Jacksonville, Florida. In a preliminary decision issued on June 8, 1999, Respondent, Agency for Health Care Administration (AHCA), denied the application on the grounds that on April 8, 1998, Petitioner's owner had "pled guilty to operating an unlicensed [ALF] and [was] placed on 24 months' probation," and that her probation conditions prohibited her "from operating or maintaining an [ALF]." Petitioner denied the allegations and contended that its owner had met all terms of probation; that its owner had not been adjudicated guilty of the charges; that the denial was based on "erroneous facts"; and that AHCA had abused its discretion.

2. Petitioner's owner is Shirley I. Fosset, a certified nursing assistant. Although the record is not altogether clear, it appears that several years ago, perhaps in 1994 or 1995, she assumed ownership of a licensed ALF known as Barlow Community Home in Jacksonville, Florida. It is undisputed that while operating that facility, Fosset was not cited for failing to adhere to AHCA regulations. Because the prior owner would not

   keep the facility's building in good repair, however, Fosset decided to move to a new location when it came time to renew the license, and to seek a new license under her own name. While seeking a new license, she continued to "knowingly" operate an ALF after her old license had expired.

3. Sometime during the first half of 1997, but prior to June 19, 1997, Fosset was advised by AHCA to obtain a license within ten working days or else be subject to prosecution. Fosset then filed an application for licensure on an undisclosed date, but it was deemed incomplete because it lacked a legible fire marshal's report; zoning verification; sanitation and inspection reports; and a completed assets, liabilities, and statement of operation form. There were also unpaid license fees. Although she later submitted a legible fire marshal's

   report and paid the fees, the application was never determined to be complete and was therefore denied.

4. On February 26, 1998, an information was filed by the Duval County State Attorney against Fosset charging that on June 19, 1997, she was operating an unlicensed ALF in Duval County, a third degree felony. On April 9, 1998, Fosset pled guilty to the charge, and adjudication of guilt was withheld. She was placed on supervised probation for 24 months, and one condition of probation prohibited her from "operating and maintaining an adult living facility" during her probationary period. According to Petitioner, her term of supervised

   probation was terminated on April 30, 1999, or prior to the original two-year period, and this was not contradicted. If this is true, then the condition that she not operate an ALF during her probationary period has also expired.

5. The state attorney's office notified AHCA of Fosset's guilty plea by letter dated April 24, 1998. After receiving the letter, AHCA issued an Amended Administrative Complaint against Fosset on June 8, 1998, charging her with operating an unlicensed ALF. The parties eventually entered into a Joint Stipulation on July 7, 1998, wherein Fosset agreed to pay a fine, and a Final Order was entered on August 21, 1998, accepting the stipulation.

6. On an undisclosed date in 1998, Fosset filed a second application for licensure. This application was preliminarily denied on May 20, 1998, on the ground she had "pled guilty to operating an unlicensed ALF." When no request for a hearing was made, a Final Order confirming this action was entered by AHCA on July 1, 1998.

7. A third application was filed by Petitioner with AHCA on April 28, 1999, by which she again sought an initial license authorizing the operation of a five-bed ALF at 1244 Edgewood Avenue, West, Jacksonville, Florida. On May 25, 1999, the application was denied under Section 400.414(1)(m), Florida Statutes, on the grounds Fosset had pled guilty to operating an unlicensed ALF, and the terms of her probation prohibited her from operating such a facility. On June 8, 1999, AHCA amended

   its earlier letter and added Section 400.414(3), Florida Statutes, as an additional statutory ground for denying the application. The latter statute authorizes AHCA to deny an application whenever an applicant has been denied an application within the preceding five-year period. This controversy followed.

8. Petitioner concedes that she operated a facility without a license after being told to cease operations, but she did so only because she did not wish to "throw [her clients] out on the street," especially since none of them had other family or another facility in which to be placed. Despite being well- intentioned, Fosset nonetheless violated the law by continuing to operate without a license.

9. Petitioner also points out that she has attempted in good faith on no less than three occasions to obtain a license. However, the first application was denied for technical reasons (incompleteness), and there is no record evidence that all of the missing items were ever submitted. Her last two efforts were properly rebuffed because Petitioner had continued to operate an ALF without a valid license. Finally, there is no dispute that Petitioner desires a license because she is truly committed to assisting elderly persons.

   CONCLUSIONS OF LAW

   
   

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

11. Because Petitioner is seeking a license from the state, she bears the burden of proving entitlement to licensure by a preponderance of the evidence. See, e.g., Dep't of Transportation v. J. W. C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981).

12. Section 400.414, Florida Statutes (Supp. 1998), governs this proceeding. Paragraph (1)(m) authorizes AHCA to deny an application for the following reason:

    1. The agency may deny . . . any license under this part . . . for any of the following actions by an assisted living facility, any person subject to level 2 background screening under s. 400.4174, or any facility employee:

       
       

       (m) Knowingly operating any unlicensed facility or providing without a license any service that must be licensed under this chapter.

       
       

13. In addition, subsection (3) of the same statute reposes in AHCA the discretionary authority to "deny a license to any applicant . . . if the applicant . . . during the 5 years prior to the application for a license . . . had a license denied."

14. It is undisputed that Petitioner "knowingly operated" an unlicensed facility in June 1997. In addition, by having her second application denied on July 1, 1998, or within five years

    of the instant application, Section 400.414(3), Florida Statutes, comes into play. Therefore, sufficient statutory grounds exist for AHCA to deny the application.

15. Denial of an application is not mandated under the foregoing statutes. Even so, while Fosset has made at least three attempts to obtain a license, and is otherwise qualified to operate an ALF, her conviction for operating an unlicensed facility less than eighteen months ago is a sufficient basis on which to deny the application at this time.

16. In so ruling, the undersigned has considered Petitioner's contention that the letter of denial was based on "erroneous facts." For example, Fosset points out that her probationary period ended on April 30, 1999, and thus she is no longer prevented from operating an ALF. In addition, she points out that adjudication of guilt was withheld by the sentencing court. There are, however, other statutory grounds for denying the application, as described in paragraph 14. Given the circumstances herein, it cannot be concluded that the agency acted arbitrarily or abused its discretion in denying the application, as alleged by Petitioner, especially since the conviction occurred just seventeen months ago.

17. Finally, AHCA's position that Petitioner is barred, at a minimum, from obtaining a license for at least five years after April 8, 1998, is not consistent with the statute. As noted above, the statutes are permissive, and not mandatory, and they

clearly authorize AHCA to issue a license, notwithstanding the fact that an applicant has been convicted of a disqualifying crime, or has had an application denied within the preceding five years. Therefore, upon a proper showing within that time frame, Petitioner may lawfully be issued a license.

RECOMMENDATION

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

RECOMMENDED that the Agency for Health Care Administration enter a Final Order denying Petitioner's application for an initial license to operate an Assisted Living Facility.

DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1999.

COPIES FURNISHED:

William Roberts, Jr., Esquire 816 Broad Street

Jacksonville, Florida 32202-4754

Michael O. Mathis, Esquire

Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the Agency for Health Care Administration.

Docket for Case No: 99-002985

Orders for Case No: 99-002985