STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA CALLAHAN LaGUE, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2519

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

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 13 March 1979 at Largo, Florida.

APPEARANCES

For Petitioner: Maureen Emmet-Miller, Esquire

2935 First Avenue North

St. Petersburg, Florida 33713

For Respondent: Barbara D. McPherson, Esquire

Post Office Box 5046 Clearwater, Florida 33518

By Petition received in the Division of Administrative Hearings, December 22, 1978, Martha Callahan LaGue, Petitioner, contested the denial of a license for her Adult Congregate Living Facility located in St. Petersburg, Florida. In the Petition, Petitioner essentially denies the allegations made by Respondent in denying Petitioner's license application.

FINDINGS OF FACT

1. After seeing an advertisement in the newspaper Soliciting boarders, Mrs. Gail Graham, HRS Program Specialist, visited the boarding home operated by Martha Callahan. and advised her that licensure was required and that certain preliminary inspections, viz. fire and health department, were necessary before application for licensure could be made. Mrs. Callahan had these inspections conducted and applied for licensure. In June or July, 1978, Mrs. Graham visited the home, conducted an inspection and gave Mrs. Callahan (who married Mark LaGue in July, 1978) a packet containing forms of various records required to be maintained by an Adult Congregate Living Facility and copies of various rules and regulations pertaining thereto. Mrs. Callahan had previously held a temporary license at another home which she sold before a permanent license became necessary.

2. By letter dated 26 July 1978, the DHRS denied Petitioner's application for full licensure, but granted Petitioner a conditional license for a period of three months. The letter listed numerous requirements with which the LaGue home was not currently in compliance. In effect, the conditional license authorized the home to continue serving the residents during the three months grace period within which the home would have to bring its records and reporting requirements into line with the laws and regulations.

   
   

3. Shortly thereafter, a resident of the LaGue home, a Mr. Reiber, registered a complaint against Mr. LaGue with HRS. Mrs. Graham visited the home in the early afternoon, and found Reiber had been moved. She observed that LaGue appeared to have been drinking and was slightly intoxicated. When she accused LaGue of having been drinking, he did not deny it.

   
   

4. Mrs. Graham then sought out Mrs. LaGue, inspected the home and told Mrs. LaGue that LaGue was never to be left alone with the residents. Mrs. LaGue agreed that she would not leave the home without obtaining a qualified replacement during her absence.

   
   

5. Several days thereafter, Mrs. LaGue was called to Ohio on an emergency and LaGue was left in charge of the home. During this period, LaGue called HRS to demand that Mrs. Hickman, an 88-year old resident be removed immediately because she was causing dissension. When Mrs. Graham visited the home on August 18, 1978, Mrs. Hickman had already been removed.

   
   

6. Mrs. Zela Hickman stayed at the LaGue boarding home for about one and one-half months. During the period in August, 1978, while Mrs. LaGue was in Ohio, Mrs. Hickman testified that LaGue struck her, locked her in her room, and forced her to miss supper.

   
   

7. On two occasions another resident of the home opened the door for Mrs. Hickman which was not locked but fitted with a hasp, the hinge part of which was placed over the staple but otherwise unsecured. Another door to this room existed which could not be locked from the outside.

   
   

8. After being thoroughly frightened if not actually abused by LaGue, Mrs. Hickman wrote a letter to Dr. Futch, her physician, asking him to get her out of the home. She gave this letter to the cleaning woman to mail. The same day the letter was mailed, the maid (or some other unidentified person) called Dr. Futch's office to report Mrs. Hickman was being abused. The following day, Dr. Futch received Mrs. Hickman's letter. Mrs. Hickman was brought to Dr. Futch's office that day by LaGue. Upon arrival, she was examined by Dr. Futch, found to be very upset emotionally but with no marks showing physical abuse. In view of her history of heart problems and emotional condition, Dr. Futch had Mrs. Hickman hospitalized.

   
   

9. Jimmy Murray was a resident at the LaGue home for two or three months. He, too, complained of being abused by LaGue, by being struck with a belt, and of Mrs. LaGue making sexual advances towards him. Murray also testified that LaGue threatened to put something in his food so he wouldn't awake the next morning.

   
   

10. Shortly before the conditional 90-day license was due to expire Mrs. Graham conducted a final inspection of the LaGue home and found no admission and discharge register was being maintained as required, that residents had not received X rays as required, and, by letter dated 29 November 1978 (Exhibit 2), the application for licensure was denied on these grounds plus the allegation

    that a person serving in an official capacity had not conducted himself in a personable manner with all residents and refrained from all abuse.

    
    

11. At the hearing, Petitioner introduced into evidence completed resident admission and discharge forms and evidence that all residents had received chest X rays.

    
    

12. Mrs. LaGue has operated boarding houses for the elderly for several years and appears to have valid concern for their well-being. She was aware of the various requirements for licensure prior to the incidents involving the 16th Street home as she previously owned another home on 57th Avenue which had held a temporary license for six months. A permanent license for the home was not applied for because the home was sold. Without the presence of Mr. LaGue on the premises, it would appear that Mrs. Lague is capable of, and for years did, operate satisfactorily a boarding house. His advent onto the scene has been inimical to the well-being of the residents.

    
    

13. Although LaGue vehemently denied all allegations of misconduct against him and testified that he is an ordained minister, it appears that he is a mail- order theologian without congregation or parish. After testifying that he was building a local parish, in response to the question, Where?, LaGue replied that he was looking for a location.

    
    

14. Mrs. LaGue, in a letter dated 1-6-79 (Exhibit 7) addressed to Mrs. Graham, advised that "My husband Mark is returning to business as an auctioneer."

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

    
    

16. At the time the letter of denial was issued, residents of Petitioner's facility had not had chest X rays or skin tests as required by Rule 10D-5.05, Florida Administrative Code, and the admission and discharge register required by Rule 10A-5.07, F.A.C., was not being maintained. These two items were corrected prior to the time of the hearing and no longer provide a basis for denying licensure.

    
    

17. Personnel standards for Adult Congregate Living Facilities are contained in Rule 10A-5.09, Florida Administrative Code, which provides in pertinent part:

    
    

    Personal Standards. The administrator of a facility shall:

    (4) Assure that each person serving

    in any official capacity at the facility shall

    (c) Conduct himself in a personally acceptable manner with all residents, including refraining from abusive, immoral or other unacceptable conduct, behavior or language.

    
    

18. The evidence was insufficient to find Mrs. LaGue made sexual advances toward Jimmy Murray as alleged or that LaGue actually struck any of the complaining witnesses. However, a careful consideration of all the evidence

    shows that LaGue conducted himself in an abusive manner and his conduct toward the two complaining witnesses was totally unacceptable.

    
    

19. During the time of these two complaints, LaGue testified that he was helping with the cooking, and, as the husband of the owner, he obviously was serving in an official capacity and exercised the authority of an official of the facility.

From the foregoing, it is concluded that Mark LaGue, while serving in an official capacity at Petitioner's Congregate Living Facility, conducted himself in an unacceptable manner toward the residents of the facility. It is therefore

RECOMMENDED than the application of Martha Callahan LaGue for a license to operate an Adult Congregate Living Facility at 1024 16th Avenue North, St.

Petersburg, Florida, be denied.

Entered this 6th day of April, 1979, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Maureen Emmet-Miller, Esquire 2935 First Avenue North

St. Petersburg, Florida 33713

Barbara D. McPherson, Esquire Department of HRS

District V Legal Counsel Post Office Box 5046 Clearwater, Florida 33518

Docket for Case No: 78-002519

Orders for Case No: 78-002519