vs. ) CASE NO. 82-3150
) LESTER L. MARX and LOREE B. AST, )
Respondent. )
Pursuant to notice, an administrative hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on May 26, 1983. The issue for determination was the propriety of a proposed fine by Petitioner, Department of Health and Rehabilitative Services (HRS), against the Respondents because of alleged violations of Chapter 400, Florida Statutes (1981), and Rule 10A-5.27, Florida Administrative Code.
For Petitioner: Douglas E. Whitney, Esquire
For Respondents: Lester L. Marx, pro se
Loree B. Ast, pro se 5219 Satel Drive
On October 8, 1982, Petitioner served an administrative complaint alleging violations of Florida statutes and sections of the Florida Administrative Code on Respondents by hand delivery. Thereafter, on October 18, 1982, both Respondents requested a formal hearing on the allegations.
Petitioner presented the testimony of Henry McLaulin, III; Mary Lou Marx; James E. Garner; and Barbara B. Wavell in the case in chief and that of June C. Bryant and Roberta J. Harden in rebuttal, as well as Petitioner's Exhibit 1.
Respondents both testified in their own behalf, as did Wade C. Goodlett.
During the latter part of 1981 and early 1982, Henry McLaulin, III, a counselor with the Adult Services Division of HRS, had contact on three separate occasions with respondent Marx at his then licensed adult congregate living facility (ACLF) in Orlando, Florida. These contacts were in connection with reports McLaulin had received that residents of Marx's facility had been forced to submit to high colonic irrigations, a procedure which, under some circumstances, could be life threatening. His interview of the three residents who had experienced this procedure revealed that at least in two cases the action was taken against their will. As a result, McLaulin petitioned the court for HRS to assume custody of the residents, and they were removed from Marx's custody.
Approximately a week later, McLaulin returned to the facility to check on the remaining residents. On this occasion, he was denied entrance by Marx, who told him the residents had been moved to another address (9354 Fifth Avenue, Taft, Florida). Contact with family members of these residents revealed they had not been notified of the transfer and, as a result, McLaulin again petitioned the court for custody of the remaining residents. This was granted. McLaulin also recommended that Marx's license to operate an ACLF be revoked. Revocation action was initiated based on a Protective Services investigation revealing that the three residents mentioned above had been forced to undergo colonic irrigation, which constituted intentional or negligent acts affecting the welfare of the residents. Since Marx had been warned of this previously and had agreed to cease the practice at that time, his failure to do so supported the revocation order.
When Marx was first notified of the pending revocation, he initially requested a hearing, but before it was held, he withdrew the request. His provisional license to operate an ACLF, issued in 1981, was therefore revoked, and he knew it.
In September, 1982, after the revocation, McLaulin again contacted Marx on the basis of an Orange County Sheriff's Office report that Marjorie Goodlett, a resident in Marx's home, had been required to undergo high colonic irrigation against her will.
Mrs. Goodlett had been placed in Marx's facility by her former husband, who agreed to pay $900 per month to Marx and Ast for her care. According to Mr. Goodlett, his ex-wife was the type of person who would object to anything anyone would suggest to her. He related that her personal cleanliness was minimal, as she would not bathe unless forced to do so. He states she required constant care, although she has not been adjudicated an incompetent, and he placed her in Respondents' home where he felt he could depend on her being taken care of rather than in a nursing home. On the other hand, Mrs. Marx, who had lived with Mrs. Goodlett at her former residence for two weeks before she came to the Respondents' facility, indicated that while she would definitely require some form of continuing care, she was always willing to do what she had to do for her own well-being.
The morning after Mrs. Goodlett arrived at the facility, she was observed by Mrs. Marx being taken by Respondents Marx and Ast toward the room in which the colonic irrigation machine was kept. Mrs. Goodlett was verbally protesting this treatment and was being gently, but firmly, escorted there. Somewhat later that same morning, Mrs. Marx observed Mrs. Goodlett on the colonic table. At that time, Mrs. Goodlett stated she did not want the
treatment and wanted help to get out of there. At first, Mrs. Marx refused to help, but when she discussed the matter with another resident, Mr. Garner, she decided to call the Sheriff's Office.
This other resident, Mr. Garner, was, at that time, paying $300 per month for his care at the Marx facility. Mr. Garner, who is physically disabled due to a brain tumor 16 years ago, had been a resident of another ACLF before coming to the Marx facility. Because of overcrowding in his former home, he had been required to leave, and the operator of that home arranged for him to move into the Marx place in August, 1982. When he got there, he found it roach infested and contributed $15 to have an exterminator come.
Shortly after coming to live at this facility, he, too, was administered a colonic irrigation by Respondents. Though he did not object to the first treatment in advance, after receiving it, he absolutely refused to have another.
Mr. Garner was a resident in Respondents' facility when Mrs. Goodlett was brought there. Before she came to the house, Mr. Garner slept in one twin bed in the house's one bedroom, separated by a partition from the other bed in the same room occupied by Mrs. Ast. When Mrs. Goodlett came, she was required to vacate the bedroom and moved out to a couch in the living room. Another couch in the living room was occupied by Respondent Marx.
The day after she arrived at the house, Mr. Garner observed Respondents take Mrs. Goodlett, over her objection, into the back room ostensibly to administer a colonic irrigation. Mrs. Goodlett verifies that the colonic irrigation, a painful and embarrassing experience for her, was administered by Mrs. Ast, against her will, at the Respondents' house on September 16, 1982, the day after she arrived at the house.
Mrs. Goodlett remained at this house for only one or two nights before being moved to another facility. Though five individuals occupied the premises for those two nights while she was there, full-time residents of the house were Respondents, Marx and Ast, and Mr. Garner. Mrs. Marx had lived there at one time, but had moved from the house and was occupying a trailer in back of the house.
Mrs. Ast denies that Mr. Garner was forced to submit to colonic irrigation and instead indicates that he requested it. His $300 per month was for room and board only and did not include treatments such as irrigation or massage, which Respondent Marx follows. Mrs. Ast also denied that force was used in performing the procedure on Mrs. Goodlett, although she admits to the use of verbal persuasion. Considering the situation as a whole and the relative probabilities, I find that while physical force may not have been used to overpower a physical resistance to the procedure, sufficient persuasion was used by both Respondents to intimidate the subject, Mrs. Goodlett, and create a situation where the subject submitted to the procedure without consenting to it.
Naturopathy, the discipline followed by the Respondent Marx, whose license is currently pending revocation, teaches, inter alia, the curative effect of high colonic irrigation to cleanse the bowels. Respondent Ast, a former licensed practical nurse in Florida for many years, was under the belief that it was legal to operate an ACLF without a license for one or two residents. She intended to evict Mr. Garner when Mrs. Goodlett came, as he was paying only
$300 per month, as opposed to the prospective $900 per month the latter would bring in. After she and Marx started working together, she contacted various
churches in the area, indicating that they would be able to take in a few residents. She no longer lives at Marx's facility, and the Taft house, where these allegations arose, is now rented out.
Respondent Marx contends that ever since his entry into the U.S. Army as a corpsman during World War II, his interest has only been to save lives. He believes this to be his duty as instructed and taught by his God, and he intends to do so until his Savior calls him. He conducts a ministry known as the "House to House Ministry," and all his income, as well as that of Mrs. Ast, which consists of Social Security payments only, goes into that ministry. He denies operating an ACLF now, nor, he contends, has he done so since Mrs. Goodlett left.
However, on May 20, 1983, Roberta J. Harden, a counselor for HRS, contacted Respondent Marx by telephone on the pretext that she needed to find a place for her father to live and asked if Marx would take him on as a patient/resident. Respondent Marx said he would, that she should bring her father to his current residence on Satel Drive, and they would discuss fees when they got there. Respondent Marx admitted to this conversation, but contends, however, he was going to refer her to a licensed facility.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Respondents are alleged to have violated Section 400.407(1), Florida Statutes (1981), which states:
It is unlawful to operate or maintain a facility without first obtaining from the department a license autho- rizing such operation.
and Rule 10A-5.17, Florida Administrative Code, which states:
Owners of Adult Congregate Living facilities as defined in Section 400.402(1), F.S., who fail to make application for licensure shall be advised by the Department by certi- fied mail that the facility is
subject to licensure requirements. The Department shall include an application for license packet.
Facilities shall be advised of recourse procedures available under provisions of Chapter 120, F.S.
Any facility denied a license to operate as an Adult Congregate living Facility or having a license revoked, and continuing to provide personal services shall be deemed an unlicensed facility, and shall be subject to appropriate action by the Department.
The evidence submitted clearly shows that Respondent Marx had been operating a facility under a provisional license which had been revoked, a fact of which he was aware. Mrs. Ast's testimony that she thought it was legal to operate a facility without a license for only one or two residents demonstrates her knowledge of the fact that licensing provisions existed, that Marx had had one, and that he had lost it. Her professed ignorance of the law does not serve as a defense to her participation in the unlawful activity. Both, then, are clearly in violation of both the statute and the rule.
Both Respondents are also alleged to have violated Sections 400.428(1)(a) and (b), Florida Statutes (1981), which state:
No resident of a facility shall be deprived of any civil or legal
rights, benefits, or privileges guaran- teed by law, the Constitution of the State of Florida, or the Constitution of the United States solely by reason of status as a resident of a facility. Every resident of a facility shall have the right to:
Live in a safe and decent living environment, free from abuse and neglect.
Be treated with consideration and respect and with due recognition of personal dignity, individuality, and the need for privacy.
and Rule 10A-5.18(8), Florida Administrative Code, which states:
Facilities shall protect resident rights and freedoms in accordance with the Resident Bill of Rights, Section 400.443, F.S.
The evidence shows that Mr. Garner and Mrs. Goodlett were administered high colonic irrigation treatments by Respondents acting together. Whether both Respondents actually participated in the physical act or irrigation is immaterial. It is clear that what Marx proposed Ast disposed. While Mr. Garner consented to his one and only treatment and action cannot, therefore, be based on that incident, his testimony regarding its effect on him clearly demonstrates it is a demeaning and undignified procedure which, when administered against the will of the recipient, clearly constitutes abuse and a deprivation of personal dignity.
Therefore, when considering the testimony from Mr. Garner and Mrs. Marx to the effect that Mrs. Goodlett did not willingly take the treatment, and the statement of Mrs. Goodlett regarding her feelings about the procedure, there can be no doubt its administration to her constitutes clear evidence of abuse and a definite deprivation of her personal dignity. She was placed in the care of Respondents by her former husband, an individual who had no legal right to arrange for her treatment since, by his own admission, he was no longer her husband, nor had he been appointed her guardian. His good intentions are no more exculpatory than are the expressed desires and "motivation" of the Respondents to do good. It is clear, then, that both Respondents violated both the statute and the rule in their treatment of Mrs. Goodlett.
Respondents are also alleged to be in violation of Rule 10A-5.23, Florida Administrative Code, which, at Subsection (1), states:
The facility shall provide uncrowded, safe, and sanitary housing appropriate for services provided and needs of the residents.
by "caus[ing] the living situation of five people, two of which were residents, in a one bedroom house."
Only for two nights at the most were two residents in the house the two nights both Mrs. Goodlett and Mr. Garner were in residence. On those two nights, both Mr. Marx and Mrs. Ast were also present. However, had not Mrs. Marx called the Sheriff's Office, which resulted in the departure of Mrs. Goodlett, most probably both would have stayed, notwithstanding Mrs. Ast's testimony that Mr. Garner was to go. Adding this crowding to the roach infestation, as testified to by Mr. Garner, it is clear that Respondents were not providing "uncrowded, safe, and sanitary housing" for these residents and were therefore in violation of the rule.
The conditions and occurrences which have formed the basis for the facts found in the Findings of Fact, supra, constitute Class II violations as defined in Section 400.419(3)(b), Florida Statutes (1981), and subject Respondents to disciplinary action under Section 400.414, Florida Statutes (1981).
That Respondent Lester L. Marx be assessed an administrative fine of $1,000 and that Respondent Loree B. Ast be assessed an administrative fine of $500.
RECOMMENDED this 20th day of June, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1983.
Douglas E. Whitney, Esquire Department of Health and
Mr. Lester L. Marx 5219 Satel Drive
Mrs. Loree B. Ast 5219 Satel Drive
Mr. David Pingree Secretary
