STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COMFORTABLE LIVING, IN GOOD HANDS,

Petitioner,

vs.

AGENCY FOR PERSONS WITH DISABILITIES,

Respondent.

/

Case No. 14-0689

RECOMMENDED ORDER

Administrative Law Judge W. David Watkins conducted a final hearing in this case by video teleconference between sites in Orlando and Tallahassee, Florida, on April 17, 2014.

APPEARANCES

For Petitioner: Wanda Strong, pro se

1309 Jules Court

Eustis, Florida 32726

For Respondent: Kurt E. Ahrendt, Senior Attorney

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for licensure as a foster care facility should be approved or denied by Respondent, Agency for Persons with Disabilities.

PRELIMINARY STATEMENT

On October 16, 2013, Petitioner, Wanda Strong d/b/a Comfortable Living, In Good Hands, submitted an application for licensure as a foster care home facility to Respondent, Agency for Persons with Disabilities (APD). By letter dated January 28, 2014, APD notified Petitioner that her application for licensure was being denied. Petitioner timely filed a request for administrative hearing to contest the denial of her application.

APD transferred the case to the Division of Administrative Hearings (DOAH) on February 14, 2014. The final hearing was scheduled, by Notice dated February 21, 2014, and was held on April 17, 2014.

At the hearing, Petitioner testified on her own behalf, and called one witness, Norma Lovett. Petitioner did not offer any exhibits. Respondent APD presented its case through the testimony of Cabot McBride, APD Licensing Specialist, and Brandie Horne, a Child Protective Investigator with the Department of Children and Families (DCF). Respondent offered two exhibits, both of which were admitted into evidence.

The official Transcript of the hearing was filed with DOAH on April 28, 2014, and thereafter both parties timely filed their Proposed Recommended Orders.

FINDINGS OF FACT

Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made:

1. Petitioner is an applicant for licensure of a foster home residential facility. She submitted her application to APD on October 16, 2013. The application requested licensure of the facility in Petitioner’s individual name. However, the proposed name of the facility was Comfortable Living, In Good Hands, to be located at 1309 Jules Court, in Eustis, Florida. Petitioner owns the property located at that address, which serves as her current residence.

2. APD is the state agency which licenses foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs, pursuant to section 393.067, Florida Statutes.1/ APD is charged with reviewing all applications and ensuring compliance with all requirements for licensure.

3. On page 10 of the application, Petitioner signed the attestation statement and had her signature notarized. The attestation states:

   Under penalty of perjury, I hereby attest that all information submitted as part of this application is true and accurate to the

   
   

   best of my knowledge and by submitting same I am requesting a license to operate a facility in accordance with chapter 393, F.S. I also attest to such information on behalf of the above-named applicant for licensure or license-renewal.

   
   

4. The application indicated that the individual responsible for on-site management and supervision of the facility was Wanda Strong. However, Ms. Strong failed to provide any of the information under the section which requires details on the education and experience of the person identified as the On-Site Manager.

5. The application also included a series of questions concerning the applicant’s qualifications under Section V: Affidavit. Question 2 under this section asked the following: “Have you or anyone identified as a board member or party to ownership ever been identified as responsible for the abuse, neglect, or abandonment of a child, or the abuse, neglect, or exploitation of a vulnerable adult?” Respondent answered “no” to this question.

6. Question 12 under Section V posed the following question: “Have you or anyone identified as a board member or a party to ownership, been convicted of a misdemeanor or felony?” The application also provided that if the response to this question was “yes,” the applicant was to provide “additional information regarding such situation(s)” on the lines provided.

   
   

7. Petitioner responded to Question 12 in the affirmative, but failed to provide any details regarding her conviction.

8. During APD’s review of Petitioner’s application, APD took steps to verify the accuracy of the information provided by Petitioner by conducting a search of DCF records on the Florida Safe Families Network.

9. APD’s records search revealed a DCF report which indicated eight verified findings of neglect against Wanda Strong. Specifically, the report stated that on February 5, 2013, Wanda Strong was the caregiver at the Strong Family Day Care responsible for leaving eight children alone at the facility.

10. Brandie Horne is a Child Protective Investigator employed by DCF. Ms. Horne conducted the investigation of the complaint against Strong Family Day Care, prepared the written report, and made the findings of neglect against Ms. Strong.

11. In the course of her investigation, Ms. Horne conducted interviews of the children present at the Strong Family Day Care, and the mother of the children. Ms. Horne also interviewed Wanda Strong and Karlisa Woods, Ms. Strong’s daughter. Ms. Horne determined that on February 5, 2013, the mother of the children dropped them off at Karlisa Woods’ residence. Ms. Woods then left the children alone when she left to go to work. When Petitioner got off work from her night job, she arrived at

    
    

    Ms. Woods’ house at 7:45 a.m. Petitioner then left the younger children alone a second time, while she took the older children to school.

12. When Ms. Horne interviewed Petitioner, Ms. Strong acknowledged that the mother dropped off her children with

    Ms. Woods at 6:40 a.m., and that Ms. Strong got off work from her job at 7:40 a.m. However, Ms. Strong denied that the children were left alone.

13. When Ms. Horne interviewed Karlisa Woods, Ms. Woods claimed that she did not leave the children alone, but rather had all of the children accompany her in her vehicle, when she drove to pick up Ms. Strong from her work.

14. Ms. Horne determined that Ms. Strong’s statement was inconsistent with Ms. Woods’ statement, conflicted with the statements of the children, and contradicted text messages received from the mother of the children.

15. On March 13, 2013, Ms. Horne met with Petitioner to discuss the inconsistencies in her statements and the other evidence uncovered. At that time, Ms. Horne orally notified Petitioner that she was closing the investigation with verified findings of neglect. Ms. Strong told Ms. Horne that her contract with the Early Learning Coalition had been terminated as a result of this situation.

    
    

16. Petitioner was fully informed and aware of the verified findings of neglect made by DCF Child Protective Investigator Horne. In addition, Ms. Horne distinctly recalled giving Petitioner a Notice of Rights and Responsibilities (Notice), which is routinely given to persons who are responsible for verified findings of abuse, neglect, or abandonment of children. The Notice states that a person receiving verified findings may request a copy of the investigative summary within 30 days after closure. The Notice also included the name and telephone number of the investigator. While at hearing Petitioner acknowledged receiving from Ms. Horne a document with the investigator’s name and telephone number, she could not recall what further information was included on the document.

17. At hearing, Petitioner explained why she answered Question 2 in the negative, stating that she did not receive “paperwork” indicating a finding of neglect. However, Petitioner did acknowledge discussing the final report with Brandie Horne, including that the finding of inadequate supervision would identify her as the person responsible. Making reference to her notes made nearly contemporaneously with her conversation with Petitioner, Ms. Horne testified that on March 13, 2013, at

    9:15 a.m., she orally informed Ms. Strong of the verified findings contained in her report.

    
    

18. Petitioner’s response to Question 2 falsely represented or omitted a material fact in the license application.

    Petitioner also omitted material facts by failing to provide information pertaining to her education and experience as an onsite manager, and by failing to provide details pertaining to

    her criminal conviction.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. §§ 120.569 and 120.57, Fla. Stat.

20. Petitioner, as the party asserting the affirmative of the issue in this proceeding, has the burden of proof. Balino v.

    Dep’t. of HRS, 348 So. 2d 349 (Fla. 5th DCA 1977); State Dep’t. of Agric. and Consumer Servs. v. Strickland, 262 So. 2d 893 (Fla.

    1st DCA 1972). The level of proof is a preponderance of the evidence. Dep’t of Banking and Fin. v. Osborne Sterne and Co.,

    670 So. 2d 932 (Fla. 1996). Thus, Petitioner must prove, by a preponderance of the evidence, that her application for licensure should be approved.

21. APD is charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs pursuant to section 20.197 and chapter 393, Florida Statutes.

    
    

22. Section 393.067 sets forth APD’s responsibilities with regard to application procedures and provider qualifications. Section 393.0673 sets forth further considerations pertaining to licensure. Section 393.0673(2), provides as follows:

    (2) The agency may deny an application for licensure submitted under s. 393.067 if:

    
    

    1. The applicant has:

       
       

       1. Falsely represented or omitted a material fact in its license application submitted under s. 393.067;

          
          

       2. Had prior action taken against it under the Medicaid or Medicare program;

          
          

       3. Failed to comply with the applicable requirements of this chapter or rules applicable to the applicant; or

          
          

       4. Previously had a license to operate a residential facility revoked by the agency, the Department of Children and Family Services, or the Agency for Health Care Administration; or

       
       

    2. The Department of Children and Family Services has verified that the applicant is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult.

    
    

23. At hearing Petitioner contended that some of the allegations pertaining to the DCF verified findings of neglect may not have been completely accurate. However, whether the allegations were true or not is not relevant to this proceeding (nor does DOAH have jurisdiction to reconsider the findings on those allegations in this proceeding).

    
    

24. Petitioner also asserted that she was not informed about the DCF findings of neglect, because she did not receive a copy of the final report. However, the more credible evidence of record established that Petitioner was orally informed of the findings by DCF Child Protective Investigator Brandie Horne. She was also advised as to how to obtain a copy of the final report.

25. The findings of neglect against Petitioner are a valid basis for denial of her pending application for a foster home facility, under section 393.0673(2)(b). Inasmuch as those findings of neglect cannot be overturned at this point in time, APD would be justified in denying the application filed by Petitioner, even had she truthfully disclosed the findings of neglect on her application.

26. Further, APD completed its review of Petitioner’s application and found that Question 2 of the Affidavit had not been answered truthfully. Failure to truthfully answer questions in the application, or the omission of a material fact, is a separate statutory basis for denial of an application for licensure, under section 393.0673(2)(a)1.

27. Accordingly, in light of the governing statutory provisions, Respondent APD was justified in denying Petitioner’s application on two grounds: Petitioner made a false statement in her application that she had not been identified as responsible for the neglect of a child; and for having been verified by DCF

    
    

    as the caregiver responsible for the neglect of a child. Either of these facts justifies APD’s denial of Petitioner’s licensure application.

28. Petitioner provided no competent, substantial evidence that would support the approval of her application for licensure as a foster care facility in light of the prior findings of neglect, and misstatements or omissions of fact in the licensure application. In sum, Petitioner did not meet her burden of proof

in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a Final Order denying the application filed by Petitioner for a license to operate a foster care facility.

DONE AND ENTERED this 2nd day of July, 2014, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2014.

ENDNOTE

1/ All statutory references are to the 2013 version of the Florida Statutes, unless otherwise noted.

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Wanda Strong

Comfortable Living, In Good Hands 1309 Jules Court

Eustis, Florida 32726

David De La Paz, Agency Clerk

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 14-000689

Orders for Case No: 14-000689