vs.
Respondent.
Case No. 18-1136FL
On May 9, 2018, Administrative Law Judge (ALJ) J. Lawrence Johnston of the Division of Administrative Hearings (DOAH) conducted a disputed-fact hearing in this case by video teleconference at sites in Tampa and Tallahassee.
For Petitioner: Trevor S. Suter, Esquire
Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or
otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
On February 9, 2018, APD filed an Administrative Complaint against the Respondent. The Administrative Complaint charged the Respondent with: Count I, violations of section 393.13(3)(a)
and (g), Florida Statutes,1/ and Florida Administrative Code Rules 65G-2.009(1)(d) and (6)(a),2/ when physical abuse of a resident by staff of the Respondent’s group home was not reported; Count II, violations of section 393.0673(1)(b) and rule 65G-2.009(1)(a)1. for inadequate staffing, allowing physical abuse of a resident by another resident, and not reporting the abuse within 24 hours, as required; and Count III, violations of rules 65G-2.007(2)(e)
and (8)(a) for failure to fix a window and for not maintaining the indoor temperature of the Respondent’s group home. The Respondent admitted some allegations but denied others and asked for a hearing. APD forwarded the matter to DOAH to be heard by an ALJ.
At the final hearing, APD called four witnesses, and its Exhibits 1 through 5 were received in evidence. The Respondent testified and did not introduce any exhibits in evidence.
A Transcript of the final hearing was filed on July 3. The parties filed proposed recommended orders that have been considered, except that factual assertions in the Respondent’s
being disregarded.
The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until
September 2017.
Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent.
Count I
On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home.
Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not
Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in
Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later.
Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident.
The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else.
The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also
provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary.
Count II
On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark.
On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening.
Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements.
The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren.
The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero
tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident.
On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent.
The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren).
In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident.
On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at
this time.”
Count III
In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in
January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight.
Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
CONCLUSIONS OF LAW
Because APD seeks to impose license discipline, it has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. See Dep’t of Banking
& Fin. v. Osborne Stern & Co., Inc., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). This “entails
both a qualitative and quantitative standard. The evidence must
be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So. 2d 398, 404 (Fla. 1994). See also Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA
1983). “Although this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., Inc.,
590 So. 2d 986, 988 (Fla. 1st DCA 1991).
Disciplinary statutes and rules “must be construed strictly, in favor of the one against whom the penalty would be imposed.” Munch v. Dep’t of Prof’l Reg., Div. of Real Estate,
592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep’t of Bus. & Prof’l Reg., 812 So. 2d 583, 583-84 (Fla. 3d DCA 2002); McClung v. Crim. Just. Stds. & Training Comm’n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984)(“[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee.” (citing State v. Pattishall, 126 So. 147 (Fla. 1930)).
The grounds proven in support of APD’s assertion that the Respondent’s license should be disciplined must be those
specifically alleged in the Administrative Complaint. See e.g.,
Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep’t of Ins., 685 So. 2d 1371 (Fla. 1st DCA
1996); Kinney v. Dep’t of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Hunter v. Dep’t of Prof’l Reg., 458 So. 2d 842 (Fla. 2d
DCA 1984). Due process prohibits APD from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instruments, unless those matters have been tried by consent. See Shore Vill. Prop. Owners’ Ass’n, Inc. v. Dep’t of Envtl. Prot., 824 So. 2d 208, 210 (Fla. 4th DCA
2002); Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla.
5th DCA 1992).
Section 393.0673(1) states that APD “may revoke or suspend a license or impose an administrative fine, not to exceed
$1,000 per violation per day, if . . . (a) [t]he licensee has: . . . [f]ailed to comply with the applicable requirements
of this chapter or rules applicable to the licensee; or (b) [t]he Department of Children and Families has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult.”
Count I
As to section 393.0673(1)(b), APD did not prove by clear and convincing evidence that the Respondent was responsible
for the abuse of H.B., as alleged in Count I. See Bridlewood
Group Home v. Ag. for Pers. with Disab., 136 So. 3d 652 (Fla. 2d DCA 2013)(reversing Final Order of revocation and dismissing charges).
Count I also charges violations of section 393.13(3)(a) and (g) and rules 65G-2.009(1)(d) and (6)(a).
Section 393.13(3)(a) states that persons with developmental disabilities have “a right to dignity, privacy, and humane care, including the right to be free from abuse, including sexual abuse, neglect, and exploitation.” Section 393.13(3)(g) states they have “a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect.” APD did not prove by clear and convincing evidence that the Respondent was responsible for violating these statutes, as alleged in Count I. See Bridlewood, 136 So. 3d at 656.
Rule 65G-2.009(1) states that licensed residential homes for persons with developmental disabilities shall, at a minimum, “ensure the health and safety of the residents and shall also address the provision of appropriate physical care and supervision.” Specifically, paragraph (d) states that these homes “shall adhere to and protect resident rights and freedoms” as provided in section 393.13; that violations of section 393.13(3)(a) relating to humane care, abuse, sexual abuse,
neglect, or exploitation, and all violations of section 393.13(3)(a), are Class I violations; and that all other violation of section 393.13(3)(a) are Class III violations. APD did not prove by clear and convincing evidence that the Respondent was responsible for violating these rules, as alleged in Count I. See Bridlewood, 136 So. 3d at 656.
Rule 65G-2.009(6)(a), addressing “Resident Supervision,” states that that licensed residential homes for persons with developmental disabilities
must provide the level of supervision necessary to ensure that residents are protected from harm and that a safe and healthy living environment is created and maintained. Direct service providers must be given specific information and strategies to provide such an environment for all of residents of the facility. To the maximum extent possible, however, the facility shall respect the rights of residents to privacy and self-determination.
Violations of rule 65G-2.009(6)(a) are Class I violations. APD did not prove by clear and convincing evidence that the Respondent was responsible for violating this rule, as alleged in Count I. See Bridlewood, 136 So. 3d at 656.
Count II
As to section 393.0673(1)(b), APD proved by clear and convincing evidence that the Respondent was sufficiently responsible for the physical abuse of A.S. by another resident, as alleged in Count II, so as to be in violation of this statute.
See Bridlewood, 136 So. 3d at 656. Specifically, the Respondent
did not adequately train its employee and did not adequately staff the facility on November 24, 2017.
Count II also charges a violation of rule 65G- 2.009(1)(a)1. As stated above, rule 65G-2.009(1) requires that licensed residential homes for persons with developmental disabilities shall, at a minimum, “ensure the health and safety of the residents and shall also address the provision of appropriate physical care and supervision.” Specifically, paragraph (a)1. states that these homes shall “[f]acilitate the implementation of client support plans, behavior plans, and any other directions from medical or health care professionals as applicable.” While no violation of paragraph 1. was proven, APD proved by clear and convincing evidence that the Respondent violated section (1) of the rule by not adequately training its employee and not adequately staffing the facility on November 24, 2017.
Count III
Count III alleges violations of rule 65G-2.007(8)(a) for failing to maintain indoor temperature between 68 and 80 degrees and rule 65G-2.009(1) for failure to meet minimum standards by ensuring the health and safety of residents and providing appropriate physical care and supervision.
APD’s proposed recommended order omits findings and conclusions under Count III, and it is presumed that those charges have been withdrawn. If not withdrawn, they were not proven by clear and convincing evidence. See Bridlewood, 136 So. 3d at 656.
Appropriate Penalty
Believing it proved Counts I and II, APD contends that the appropriate penalty is revocation of the Respondent’s license. In contending that revocation is “justified,” APD fails to address the penalty guidelines in rule 65G-2.0041, which it apparently promulgated in response to the case of Agency for Persons with Disabilities v. Help is on the Way, Inc., Case No.
11-1620 (Fla. DOAH Feb. 3, 2012; Fla. APD Apr. 16, 2012). The
rule is complicated, convoluted, and not easy to implement. It clearly does not require automatic revocation.
Rule 65G-2.0041(1), entitled “DETERMINATION OF DISCIPLINARY ACTION INVOLVING ABUSE, NEGLECT, OR EXPLOITATION,”
states:
In determining whether to pursue disciplinary action in response to verified findings by the Department of Children and Families of abuse, neglect, or exploitation involving the licensee or direct service providers rendering services on behalf of the licensee, the Agency will consider the licensee's corrective action plan and other actions taken to safeguard the health, safety, and
welfare of residents upon discovery of the violation. Considerations shall include the following:
Whether the licensee properly trained and screened, in compliance with
Section 393.0655, F.S., the staff member(s) responsible for the violation;
Whether, upon discovery, the licensee immediately reported any allegations or suspicions of abuse, neglect, or exploitation to both the Florida Abuse Hotline as well as the Agency;
Whether the licensee fully cooperated with all investigations of the violation;
Whether the licensee took immediate and appropriate actions necessary to safeguard the health, safety and welfare of residents during and after any investigations[;]
Whether the occurrence is a repeat violation and the nature of such violation[; and]
The specific facts and circumstances before, during, and after the violation.
Rule 65G-2.0041(2), entitled “FACTORS CONSIDERED WHEN DETERMINING SANCTIONS TO BE IMPOSED FOR A VIOLATION,” states:
The Agency shall consider the following factors when determining the sanctions for a violation:
The gravity of the violation, including whether the incident involved the abuse, neglect, exploitation, abandonment, death, or serious physical or mental injury of a resident, whether death or serious physical or mental injury could have resulted from the violation, and whether the violation has resulted in permanent or irrevocable
injuries, damage to property, or loss of property or client funds,
The actions already taken or being taken by the licensee to correct the violations, or the lack of remedial action,
The types, dates, and frequency of previous violations and whether the violation is a repeat violation,
The number of residents served by the facility and the number of residents affected or put at risk by the violation,
Whether the licensee willfully committed the violation, was aware of the violation, was willfully ignorant of the violation, or attempted to conceal the violation,
The licensee's cooperation with investigating authorities, including the Agency, the Department of Children and Families, or law enforcement,
The length of time the violation has existed within the home without being addressed, and
The extent to which the licensee was aware of the violation.
Rule 65G-2.0041(3), entitled “ADDITIONAL CONSIDERATIONS FOR CLASS I VIOLATIONS, REPEATED VIOLATIONS OR FOR VIOLATIONS THAT HAVE NOT BEEN CORRECTED,” states:
Subject to the provisions of subsection 65G-2.0041(1), F.A.C., in response to a Class I violation, the Agency may either file an Administrative Complaint against the licensee or deny the licensee's application for renewal of licensure.
A second Class I violation, occurring within 12 months from the date in which a Final Order was entered for an Administrative Complaint pertaining to that same violation, shall result in the imposition of a fine of
$1000 per day per violation, revocation, denial or suspension of the license, or the imposition of a moratorium on new resident admissions.
The intentional misrepresentation, by a licensee or by the supervisory staff of a licensee, of the remedial actions taken to correct a Class I violation shall constitute a Class I violation. The intentional misrepresentation, by a licensee or by the supervisory staff of a licensee, of the remedial actions taken to correct a Class II violation shall constitute a Class II violation. The intentional misrepresentation, by a licensee or by the supervisory staff of a licensee, of the remedial actions taken to correct a Class III violation shall constitute a Class III violation.
Failure to complete corrective action within the designated timeframes may result in revocation or non-renewal of the facility's license.
Rule 65G-2.0041(4), entitled “SANCTIONS,” states:
Fines shall be imposed, pursuant to a final order of the Agency, according to the following three-tiered classification system for the violation of facility standards as provided by law or administrative rule. Each day a violation occurs or continues to occur constitutes a separate violation and is subject to a separate and additional sanction. Violations shall be classified according to the following criteria:
Class I statutory or rule violations are violations that cause or pose an immediate threat of death or serious harm to the
health, safety or welfare of a resident and which require immediate correction.
Class I violations include all instances where the Department of Children and Families has verified that the licensee is responsible for abuse, neglect, or abandonment of a child or abuse, neglect or exploitation of a vulnerable adult. For purposes of this subparagraph, a licensee is responsible for the action or inaction of a covered person resulting in abuse, neglect, exploitation or abandonment when the facts and circumstances show that the covered person's action, or failure to act, was at the direction of the licensee, or with the knowledge of the licensee, or under circumstances where a reasonable person in the licensees' position should have known that the covered person's action, or failure to act, would result in abuse, neglect, abandonment or exploitation of a resident.
Class I violations may be penalized by a moratorium on admissions, by the suspension, denial or revocation of the license, by the nonrenewal of licensure, or by a fine of up to $1,000 dollars per day per violation. Administrative sanctions may be levied notwithstanding remedial actions taken by the licensee after a Class I violation has occurred.
All Class I violations must be abated or corrected immediately after any covered person acting on behalf of the licensee becomes aware of the violation other than the covered person who caused or committed the violation.
(No Class II or III violations were proven in this case.)
As indicated, implementing the penalty guideline rule is not easy. However, taking all the pertinent factors into
consideration, revocation seems too harsh in this case. A more appropriate penalty would be a $1,000 fine.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000.
DONE AND ENTERED this 20th day of August, 2018, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2018.
1/ Unless otherwise indicated, all statutory references are to the 2017 version of the Florida Statutes, which is the version in effect at the time of the alleged violations.
2/ Unless otherwise indicated, all rule citations are to the rules that were in effect in late 2017, which are the rules that were in effect at the time of the alleged violations.
3/ It appears that the correct spelling of this individual’s name is Tanesha Clarke. In the Transcript and several other places in the evidence, a different spelling is used.
Trevor S. Suter, Esquire
Richard D. Tritschler, General Counsel Agency for Persons with Disabilities Suite 380
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
