STATE OF FLORIDA

DIVISION OF ADMINSTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 85-4453

) CABRAL ADULT FOSTER HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 4, 1986, in Miami, Florida. The parties completed their posthearing submissions on June 9, 1986.

Petitioner Department of Health and Rehabilitative Services was represented by Leonard Helfand, Esquire, Miami, Florida. Berta Cabral appeared on her own behalf and on behalf of Cabral Adult Foster Home.

By letter dated November 14, 1985, Petitioner advised Berta Cabral that her adult foster home re-certification was not approved, and she timely requested a formal hearing regarding that determination. This matter was then referred to the Division of Administrative Hearings by Notice

wherein Respondent designated this action as involving the denial of an adult foster home certification. By Order Restyling Case and Allocating Burden of Proof entered on March 19, 1986, the prior Hearing Officer to whom this case was assigned determined, inter alia, that this cause involves proposed action by the Petitioner to revoke, suspend, or otherwise discipline the license issued to Cabral Adult Foster Home. Accordingly, the issue for determination is whether Berta Cabral's adult foster home certificate should be revoked, suspended, or otherwise disciplined.

Petitioner presented the testimony of Hilda Carrillo, Carlos Artigas, and by way of deposition the testimony of Piedad Barros and of Virginia Williams. Additionally, Petitioner's Exhibits numbered 1-4 were admitted in evidence. Berta Cabral, Odalys Ibarra, and Julie Ibarra testified on behalf of the Respondent.

Petitioner Department of Health and Rehabilitative Services has submitted post-hearing proposed findings of fact in the form of a "Recommended Order". Petitioner's proposed finding of fact numbered 5 has been adopted in substance and incorporated in this Recommended Order.

However, Petitioner's proposed findings of fact numbered 1-4 and 6 (including all unnumbered paragraphs within

proposed finding numbered 6) have been rejected as not constituting findings of fact but rather as constituting recitations of the conflicting testimony. Respondent did not submit proposed findings of fact for ruling herein.

FINDINGS OF FACT

1. At all times material hereto, Berta Cabral and Cabral Adult Foster Home were certified by the Department of Health and Rehabilitative Services to operate as an adult foster home.

2. On October 2, 1985, Freda Aliber was released as a patient from Coral Gables Hospital and was placed in Cabral Adult Foster Home. When she arrived at the Cabral Adult Foster Home she had with her personal papers including bank statements for accounts which she held at Coral Gables Federal and at City National Bank.

3. On October 3, 1985, Berta Cabral's daughter Odalys Ibarra telephoned Coral Gables Federal to advise that she would be coming to the bank that day with Freda Aliber. Later that same day Odalys Ibarra, Julie Ibarra, and Freda Aliber came to Coral Gables Federal at which time Odalys Ibarra attempted to have her name added to Aliber's bank account. Further, Odalys Ibarra made her requests of the bank personnel in Spanish although Freda Aliber does not

   understand Spanish. Bank employees refused to add Odalys Ibarra's name to Freda Aliber's account.

4. On or about October 3, 1985, Odalys Ibarra telephoned City National Bank, identified herself as Berta Cabral's daughter, and asked a number of personal questions regarding Freda Aliber's account at that bank.

5. Odalys Ibarra's attempts to gain access to Freda Aliber's personal funds were done with the full knowledge and consent of Berta Cabral.

6. Freda Aliber did not understand what Berta Cabral, Odalys Ibarra, and Julie Ibarra were attempting to do and did not understand why she was taken to the bank.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

8. Section 400.619(4)(a), Florida Statutes, provides, inter alia, that Petitioner may suspend or revoke a license as an adult foster home for "An indicated report of abuse, neglect, or exploitation. . . ." The department has sustained its burden of proving that Berta Cabral is guilty of exploitation of Freda Aliber.

9. In its proposed recommended order, Petitioner recommends that the foster home license of Berta Cabral be

terminated. That recommendation is appropriate under the circumstances of this case in that Berta Cabral maintains that neither she nor her daughter have done anything wrong and that Odalys Ibarra's attempts to have her name added to Freda Aliber's accounts is appropriate conduct. There being no remorse on the part of Berta Cabral and no understanding of her responsibility as the operator of an adult foster home, revocation is the only appropriate remedy.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered revoking Berta Cabral's certification as Cabral Adult Foster Home.

DONE and RECOMMENDED this 31st day of July, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1986.

COPIES FURNISHED:

William Page, Jr., Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Leonard Helfand, Esquire Department of Health and

Rehabilitative Services

401 N.W. 2nd Avenue Miami, Florida 33128

Berta Cabral

Cabral Adult Foster Home 2331 N.W. 31 Street

Miami, Florida 33142

Docket for Case No: 85-004453

Orders for Case No: 85-004453