STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH A. DONALDSON, )

)

Petitioner, )

)

vs. ) Case No. 06-4139

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on February 2, 2007.

APPEARANCES

For Petitioner: Kenneth A. Donaldson, pro se

7128 North 50th Street Tampa, Florida 33617

For Respondent: Gerald L. Pickett

Agency for Health Care Administration Sebring Building, 330K

525 Mirror Lake Drive

St. Petersburg, Florida 33701 STATEMENT OF THE ISSUE

The issue is whether Respondent is entitled to the renewal of his license to operate an adult family-care home.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated September 21, 2006, Respondent informed Petitioner that it had denied his application for renewal of his license to operate an adult family-care home. The cited reason is that Petitioner did not reside in the home.

Petitioner timely requested a hearing.

At the hearing, Petitioner called two witnesses and offered into evidence four exhibits. Respondent called two witnesses and offered into evidence nine exhibits. All exhibits were admitted.

The court reporter filed the Transcript on February 28, 2007. Respondent filed a proposed recommended order on March 12, 2007.

FINDINGS OF FACT

1. At all material times, Petitioner has operated an adult family-care home at 7128 North 50th Street in Tampa. Petitioner owns this home with his cousin.

2. In anticipation of the expiration of his license on September 29, 2006, Petitioner filed with Respondent an application for renewal on May 23, 2006. Renewal applications prompt annual survey inspections, so, after the receipt of Petitioner's renewal application, one of Respondent's surveyors visited the home and performed an annual survey inspection. She

   noted items that required a follow-up inspection, so, on August 3, 2006, one of Respondent's surveyors returned for the follow-up inspection.

3. Respondent's surveyor was met at the door by Sherille Guider, who stated that she was the caregiver. The surveyor asked to see Petitioner, but she told her that Petitioner did not live at the house, although she showed the surveyor the locked room that belonged to Petitioner. When asked to produce certain routine documents, the caregiver replied that she did not have access to such documents, as they were in the locked room of Petitioner and the caregiver did not have a key.

4. Petitioner appeared a short time after the surveyor's arrival and produced the requested documents. There is some dispute as to whether he offered to show his room to the inspector, but his testimony is unrebutted that he kept a room, with clothes and toiletries, for his exclusive use at the home. He claimed that he resided at the home, although he admitted that did not spend every night there.

5. Subsequent investigation revealed that Petitioner and his wife, from whom he has been separated for two years, claim a different residence within Hillsborough County as their homestead property. Also, Petitioner's driver license currently bears the address of the home, but, at the time of the incident,

   bore the address of his homestead property. The same appears to be true of the certificate of title to his motor vehicle.

6. Petitioner testified that he originally planned to operate the home as his fulltime job, but was unable to generate enough money doing so. He has since found employment as a certified nursing assistant and often works the 11:00 p.m. to 7:00 a.m. shift.

7. Four or five months prior to the follow-up inspection, Petitioner had hired Ms. Guider to serve as a caregiver at the home. In return for her services as a caregiver, Petitioner rented a room in the home to her at reduced rent. Petitioner allowed her boyfriend also to move into a room, but required a background screening on him, as well as on Ms. Guider. After several delays, the boyfriend completed his form, and, after submitting it, Petitioner learned that the boyfriend had a criminal record.

8. Petitioner demanded that the boyfriend move out.

   
   

   Eventually, Petitioner had to summon law enforcement officers to eject the man. This episode preceded the follow-up inspection.

9. Ms. Guider's hearsay statement to Respondent's surveyor appears to be the strongest evidence on which Respondent is relying in this case. However, for the reason noted above,

   Ms. Guider was unhappy with Petitioner. Even before her boyfriend had been ejected from the home, Ms. Guider had

   approached Petitioner's two residents with a plan for her to start her own adult family-care home and for them to move into it. Ms. Guider's short period of employment with Petitioner terminated one day when, without notice, she asked a friend of Petitioner to drive her to the airport so she could fly home to Chicago. She did and never returned. For all these reasons, Ms. Guider does not appear to be a reliable source of information as to Petitioner's place of residence.

10. Petitioner testified that he resides at the home. A friend of 20 years, who also operates an adult family-care home, testified that she visits Petitioner's home regularly and knows that he resides there.

11. Petitioner's claiming of homestead exemption at another address is less evidence of his primary residence and more evidence of his carelessness or fraud in maintaining current information with the Hillsborough County property appraiser's office. The old addresses shown on the driver license and certificate of title are of little importance in determining Petitioner's residence, given the other evidence establishing the home as his residence and his subsequent updating of the addresses in these official records.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

13. Section 429.67(2), Florida Statutes, requires that the operator of an adult family-care home "reside" in the home.

14. It is not clear which party bears the burden of proof.

    
    

    Respondent claims that the burden of proof rests with Petitioner. Case law suggests that an agency cannot avoid revoking a license by declining to renew a license. See, e.g., Dubin v. Department of Business Regulation, 262 So. 2d 273 (Fla. 1st DCA 1972). However, Respondent cites Section 429.63(4), Florida Statutes, which provides that adult family-care home licensure is "a public trust and a privilege, and not an entitlement" and requires that "the finder of fact or trier of law at any administrative proceeding or circuit court action initiated by the department to enforce this part" be "guide[d]" by this principle. Section 492.63(4) raises a question as to the applicability of the case law.

15. However, imposing the burden of proof on Petitioner does not alter the outcome in this case, so this order shall assume that Petitioner bears the burden of proof.

16. Petitioner has proved that he resided in the adult family-care home that he operates at 7128 North 50th Street in

Tampa. He is thus entitled to renewal of the license that Respondent declined to renew.

RECOMMENDATION

It is

RECOMMENDED that the Agency for Health Care Administration enter a final order granting Petitioner's application to renew his adult family-care home license.

DONE AND ENTERED this 16th day of April, 2007, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 16th day of April, 2007.

COPIES FURNISHED:

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Kenneth A. Donaldson 7128 North 50th Street Tampa, Florida 33617

Gerald L. Pickett

Agency for Health Care Administration

525 Mirror Lake Drive Sebring Building, 330K

St. Petersburg, Florida 33701

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-004139

Orders for Case No: 06-004139