STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-2826

)

PAT McCOMB d/b/a )

HAPPY PEOPLE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case on December 18, 1984, in Fort Lauderdale, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Harold L. Braynon, Attorney

Department of Health and Rehabilitative Services

201 West Broward Boulevard

Fort Lauderdale, Florida 33301

For Respondent: Mark Perlman, Attorney

Perlman & Perlow, P.A

1820 East Hallandale Beach Boulevard Hallandale, Florida 33009

The issue is whether Respondent's license to operate a group home should be revoked based on an indication of abuse of clients residing in the home.

The Petitioner, Department of Health and Rehabilitative Services (DHRS), called three witnesses, Gloria Taylor, Rhonda Miklic and Pat McComb. Petitioner also introduced six exhibits, Petitioner's Exhibits 1, 2, 3, 5, 6, and 9.

Respondent presented no witnesses and introduced no exhibits. During the course of the hearing, Petitioner withdrew all allegations regarding abuse of Hanson, Meckstroh and Parsons.

The parties had an opportunity to file proposed findings of fact and conclusions of law, but both parties waived their right to submit a Proposed Recommended Order. Both parties submitted a post-hearing Memorandum of Law which has been considered herein.

FINDINGS OF FACT

1. Respondent Pat McComb is the operator of a group home in Broward County, Florida. The home operated under a license issued to Happy People, Inc.

2. Through some unspecified channel, a report of possible abuse was received and Gloria Taylor, a Human Services Counselor II with DHRS, investigated on May 18, 1984.

   
   

3. The investigation consisted of interviews with both former and current clients of the group home. A summary of these interviews is found in Petitioner's Exhibits 2, 3, 5, 8 and 9. The former clients and clients are all mentally retarded with secondary disabilities. The interviews were conducted in a group setting with Taylor addressing leading type questions to the group and the group responding in the negative or affirmative. Two clients were interviewed separately, with one being interviewed away from the group home. At least two of the clients changed their statements regarding whether any abuse had ever occurred. No client stated when or where or how often or how severe the alleged abuse was.

   
   

4. Taylor saw no bruises or other physical signs of abuse at the time she interviewed the clients. There had never been any other reports or any medical treatment required for these clients. Taylor's testimony was based solely on what she was told by the clients and former clients.

   
   

5. Based upon the written reports prepared by Taylor, Rhonda Miklic prepared and signed a letter revoking the licenses of Pat McComb and Happy People, Inc. The clients were moved from the home. The acts of Miklic in revoking the license are not discretionary. Instead, Miklic is required to revoke the license if a finding of abuse is made by the investigator.

   
   

6. Pat McComb denied any knowledge that any client was ever hit with a belt at the facility. Instead, discipline consisted of such things as loss of privileges or having a client stand in the corner.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

   
   

8. Through its post-hearing memorandum, petitioner DHRS argues its authority to revoke a group home license under Rule 10F-6.03(5), Florida Administrative Code, "if the applicant fails to maintain applicable standards DHRS further argues that one standard is set forth in Section 393.13(3)(i), Florida Statutes (1983), and that this standard was violated as supported by the "indicated" abuse finding of the DHRS investigator.

   
   

9. However, it is unnecessary to go as far as DHRS suggests. It matters not what authority DHRS used to revoke Respondent's license when the evidence presented by DHRS is considered. That evidence consisted entirely of hearsay evidence.

   
   

10. Section 120.58(1)(a) states:

    
    

    1. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of

       Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath. Hearsay evidence may be used for the purpose of supple- menting or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. This paragraph applies only to proceedings under Section 120.57.

       
       

       See also Rule 28-5.304(3), Florida Administrative Code.

       
       

11. The evidence adduced by DHRS was totally hearsay in that it was the hearsay statements of the clients and former clients as reported by a DHRS investigator. No physical evidence was presented and its existence was denied by the investigator. Hearsay evidence of the nature used in this proceeding would not be admissible in civil actions. It is therefore concluded that DHRS presented no evidence of abuse other than the hearsay evidence and the hearsay evidence did not supplement or explain any other evidence. The evidence was insufficient in itself to support a finding of abuse.

    
    

12. In license discipline cases, "the term `substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). It is concluded here that DHRS failed to show by competent substantial evidence that abuse occurred.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges against Respondent be DISMISSED and that the license of Respondent be reinstated.

DONE and ENTERED this 11th day of January, 1985, in Tallahassee, Florida.

DIANE K. KIESLING

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 11th day of January, 1985.

COPIES FURNISHED:

Harold Braynon, Attorney

201 West Broward Boulevard Ft. Lauderdale, Florida 33301

Mark Perlman, Attorney

1820 E. Hallandale Beach Boulevard Hallandale, Florida 33009

David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-002826

Orders for Case No: 84-002826