STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1828

)

LORI ENGELLEITER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in the above matter on March 19, 1984 in Melbourne, Florida. No transcript was ordered, and the parties did not submit proposed findings of fact and conclusions of law.

APPEARANCES

For Petitioner: Douglas E. Whitney, Esquire

400 East Robinson Street, Suite 911 Orlando, Florida 32801

For Respondent: Lori Engelleiter, in pro per

Post Office Box 24

Melbourne Beach, Florida 32951

By Administrative Complaint served on the Respondent by Certified Mail on April 21, 1983, the Department charges that the Respondent has operated an Adult Congregate Living Facility without having a license from the Department, in violation of Section 400.407(1), Florida Statutes, and Section 10A-5.17, Florida Administrative Code. As a penalty for this violation, the Complaint seeks to impose an administrative fine on the Respondent in the amount of $500.

Four witnesses were presented by the Department in support of the Complaint, a representative of the Department, one of the Respondent's clients who resided in the Respondent's facility and her granddaughter, and an individual whose mother resided in the Respondent's facility. The Respondent left the hearing room after appearances were taken with the announcement that she would not participate further in the proceeding, and she did not return.

FINDINGS OF FACT

1. The Respondent, Lori Engelleiter, advertised in the Island Trader, a local shopper publication, and in the newspaper, holding herself out to provide regular care for the elderly, the handicapped and the retarded in her private home for unspecified monthly rates.

2. In response to these advertisements, at least two individuals were taken into the Respondent's home for care, as arranged by relatives of these clients.

   
   

3. The Respondent provided regular personal care for not more than three residents at a time. This personal care consisted of housing, meals, help with bathing, and with dressing and changing clothes. In the cases of the two clients of the Respondent whose stays at the facility were detailed at the hearing, the personal care was provided by the Respondent for a period of three weeks in one instance, and for more than four weeks in the other instance.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The Department of Health and Rehabilitative Services is authorized to regulate and license Adult Congregate Living Facilities pursuant to Chapter 400, Part II, Florida Statutes.

   
   

5. Section 400.402(1), Florida Statutes, defines an Adult Congregate Living Facility to include any private home which undertakes to provide, for a period exceeding 24 hours, housing, food service, and one or more personal services, for four or more adults not related to the owner or operator. This statute further provides:

   
   

   A facility offering personal services

   for fewer than four adults shall be within the meaning of this definition if it formally or informally advertises to or solicits the public for residents or referrals and holds itself out to the public to be an establishment which regularly provides such services.

6. Subsection 8 of this statute defines "personal services" to include: such services as: individual assistance

   with eating, bathing, grooming, dressing, ambulation, and housekeeping.

   
   

7. Section 400.407(1), Florida Statues, provides that it is unlawful to operate or maintain a facility without first obtaining a license from the Department authorizing such operation.

   
   

8. Pursuant to Section 400.419(1)(a), Florida Statutes, if the Department determines that a facility is in operation without a license, it may take administrative action against the unlicensed facility. Subsection (b) of this statute provides:

   
   

   (b) Any facility owner or operator found to be in violation of this part shall be liable to a fine, set and levied by the department.

   
   

9. Operation of an Adult Congregate Living Facility without a license does not precisely fall under either Class I, Class II or Class III violations as described in Section 400.419(3), Florida Statutes. Thus, the Department seeks

   to levy the proposed fine of $500 against the Respondent pursuant to subsection

   (4) of this statute which provides:

   
   

   (4) The department may set and levy a fine not to exceed $500 for each violation which cannot be classified according to subsection (3). In no event shall such fine in the aggregate exceed $5,000.

   
   

10. The Respondent's use of her private home for the care of less than four clients not related to her, and her provision to these clients of housing, food service, and one or more personal services such as bathing, grooming and dressing, for more than 24 hours; and her solicitation of the public for residents by means of advertisements in which she holds herself out to regularly provide such services; subjects the Respondent to regulation by the Department. Since the Respondent has operated as an Adult Congregate Living Facility without a license issued by the Department she is guilty as charged in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the

Respondent is guilty of operating an Adult congregate Living Facility without a

license, and imposing a fine of $500 as penalty therefor.

THIS RECOMMENDED ORDER entered this 12 day of April, 1984.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1984.

COPIES FURNISHED:

Douglas E. Whitney, Esquire

400 East Robinson Street Suite 911

Orlando, Florida 32801

Lori Engelleiter Post Office Box 24

Melbourne Beach, Florida 32951

Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-001828

Orders for Case No: 83-001828