STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5455

)

AVIE L. HAILES, ) d/b/a HAILES BOARDING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 26, 1989 in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Edward A. Haman, Esquire

Department of Health and Rehabilitative Services

7827 North Dale Mabry Highway Tampa, Florida 33614

For Respondent: Arnold D. Levine, Esquire

100 South Ashley Drive, Suite 1600 Tampa, Florida 33601-3429

BACKGROUND

This matter began on September 21, 1988, when Petitioner denied Respondent's application for license renewal of the adult congregate living facility (ACLF) operated by Respondent. Respondent requested a formal administrative hearing and this proceeding ensued. Prior to commencement of the final hearing, Petitioner filed an amended denial of Respondent's application.

Petitioner's denial recited that Respondent was not of suitable character and competency to provide continuing adequate care to residents of her facility as a result of her involvement in the operation of another unlicensed ACLF.

At hearing, Petitioner presented testimony of two witnesses. Respondent offered the testimony of four witnesses and one composite evidentiary exhibit. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, including the candor and demeanor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. On or about July 18, 1988, Petitioner's representatives learned that Respondent's daughter was operating an ACLF, as defined in Part II of Chapter

   400 Florida Statutes without having a license from Petitioner for such a facility. The facility was located at 1217 East 139th Avenue, Tampa, Florida.

   
   

2. One of the residents in the facility at the time of Petitioner's employees' discovery of its unlicensed status had been recently transferred there from Respondent's licensed facility.

   
   

3. Respondent knew her daughter's facility had been licensed by hotel and restaurant regulatory authorities. She also believed her daughter had obtained licensure from Petitioner for the operation of an ACLF. Testimony of Petitioner's witnesses that Respondent was aware of the absence of the facility's licensure by Petitioner is not credited in view of the testimony of Respondent and others to the contrary; also, Petitioner's employees did not include any incriminating statements of Respondent professing knowledge of such unlicensed status in their initial investigative reports in the matter.

   
   

4. Uncontroverted testimony of Katherine H. Echevarria, a registered nurse of thirty years experience who holds a master's degree in nursing and is presently associated with research efforts of the College of Nursing at the University of South Florida, establishes that Respondent has a natural ability to lead and establish programs for disadvantaged older adults who are residents of Respondent's ACLF. Echevarria's testimony further establishes that Respondent possesses the character and competency required to operate her facility and provide continuing adequate care to residents.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

6. Petitioner has licensing jurisdiction of Respondent's ACLF pursuant to Chapter 400, Part II, Florida Statutes (1987). Petitioner is authorized to deny licensure when "the facility owner or administrator is not of suitable character and competency ... to provide continuing adequate care to residents." Section 400.414(2)(a), Florida Statutes (1987). However, where an applicant has been licensed, annual renewal may be denied only by proof by Petitioner of violations by Respondent which would also be sufficient for revocation of Respondent's license prior to expiration. Vocelle v. Riddell, 119 So.2d 809 (Fla. 2nd DCA 1960).

   
   

7. Petitioner has failed to establish by clear and convincing evidence that Respondent does not possess the requisite suitable character or competency for licensure. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting Petitioner's application

for renewal of her license.

DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5455

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1. Unnecessary to result reached.

2. Addressed.

3. Unnecessary to result reached.

4. Addressed.

5. Addressed.

PETITIONER'S PROPOSED FINDINGS

1.-2. Adopted in substance.

1. Unnecessary to result reached.

2. Rejected, not supported by the greater weight of the evidence.

COPIES FURNISHED:

Edward A. Haman, Esquire Department of Health and Rehabilitative Services

7827 North Dale Mabry Highway Tampa, Florida 33614

Arnold D. Levine, Esquire

100 South Ashley Drive Suite 1600

Tampa, Florida 33601-3429

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-005455

Orders for Case No: 88-005455