STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. AHCA No. 2015012839 License No. 9800 PALM GARDENS MANOR, INC. d/b/a File No. 11965393 PALM GARDENS MANOR III, Provider Type: Assisted Living Facility Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Palm Gardens Manor, Inc. d/b/a Palm Gardens Manor III (“the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2015), and alleges: NATURE OF THE ACTION This is an action to revoke Respondent’s licensure to operate an assisted living facility. PARTIES 1. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state statutes and rules governing such facilities. Ch. 408, Part II, Ch. 429, Part I, Fla. Stat. (2015); Ch. 58A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (2015). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2015). 2. The Respondent was issued a license (#9800) by the Agency to operate an assisted living facility located at 5835 West 14" Lane, Hialeah, Florida 33012 (“the Facility”), and was at all times material required to comply with the statutes and rules governing assisted living facilities. Assisted living facilities are residential care facilities that provide housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. These facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who do not require 24-hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, assisted living facilities provide supervision, assistance with personal care and supportive services, as well as assistance with, or administration of, medications to residents who require such services. COUNTI Background Screening 3. The Agency re-alleges and incorporates paragraphs one (1) through two (2) as if fully set forth herein. 4. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2015). 5. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual. (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if Page 2 of 11 the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04, For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (e) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2015). 6. Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2015). 7. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2015). Page 3 of 11 8. Under Florida law, (a) an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted ‘an exemption for the disqualification by the Agency as provided under Section 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment. § 435.06(2)(a)-(d), Fla. Stat. (2015). 9. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, Page 4 of 11 must be dismissed. § 435.06(3), Fla. Stat. (2015). 10. According to the records contained in the Facility’s licensure file, A.A. is the 50% Owner and President of the Respondent Facility (hereinafter “the Owner”). 11. On 11/06/2015 at approximately 4:15 p.m., the Owner submitted to the Agency via clectronic mail a completed copy of the “LOCAL ZONING FORM” in support of an application for licensure for an assisted living facility, license #12757, wherein the Owner was an affiliated owner with a 100% ownership interest. 12. The “LOCAL ZONING FORM” contains a signature for D.S., Hialeah Zoning Official of the Hialeah Zoning and Planning Department. The “LOCAL ZONING FORM” is dated 11/06/2015. 13. On 11/06/2015, the Agency’s Assisted Living Unit attempted to contact D.S. Hialeah Zoning Official via the telephone number written on the “LOCAL ZONIG FORM.” The telephone number for the Hialeah Zoning Official was an incorrect telephone number and did not belong to the Hialeah Zoning and Planning Department. 14, On 11/09/2015 at 1:51 p.m., the Agency emailed D.S., Hialeah Zoning Official to verify the signature on the “LOCAL ZONING FORM” and to verify whether the Respondent Facility has been approved for zoning. 15. On 11/09/2015 at 2:36 p.m., D.S., Hialeah Zoning Official sent the Agency a response via electronic mail stating as follows: “The document that you have sent me was not signed by me. That is not my signature and on 1 1-6-2015 I was attending City business out of the office so there is no way I could have signed it.” 16. On 11/10/2015, L.M.G., Officer of the Hialeah Police Department, conducted an interview with D.S. Hialeah Zoning Official who stated as follows: a. That the Agency advised her of a possible forgery of her signature on a zoning form submitted by the Owner. Page 5 of 11 b. That the Respondent Facility had recently failed a zoning inspection. 17. On 11/17/2015, L.M.G., Officer of the Hialeah Police Department conducted an interview with the Owner who admitted to having forged the signature of the Hialeah Zoning Official, on the “LOCAL ZONING FORM”. 18. On or about 11/17/2015, the Owner was arrested for fraudulently submitting false documentation to the Agency. 19. On or about 12/17/2015, the Miami-Dade Office of the State Attorney filed an information in the criminal case against the Owner. The Owner has been charged with felony uttering forged instruments and felony forgery. 20. Under Florida law, uttering forged instruments is defined as: “Whoever utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in Section 831.01, Florida Statutes (2015) knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, shall be guilty of a felony of the third degree...” § 831.02, Fla. Stat. (2015). 21. _Uttering forged instruments is a disqualifying offense as defined in Section 408.809(4)(p), Florida Statutes (2015). 22. Under Florida law, forgery is defined as: “Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as a legal proof: or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or Page 6 of 11 any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree...” § 831.01, Fla. Stat. (2015). 23, Forgery is a disqualifying offense as defined in Section 408.809(4)(0), Florida Statutes (2015). 24, The Owner was required at all times to maintain a satisfactory Level 2 background screening result. 25. The criminal case against the Owner is pending at the time of the service of this Administrative Complaint. 26. Under Florida law, “In addition to the grounds provided in authorizing statutes, grounds that may be used by the agency for denying and revoking a license or change of ownership application include any of the following actions by a controlling interest: ... (c) A violation of this part, authorizing statutes, or applicable rules.” § 408.815(1)(c), Fla. Stat. (2015). 27. The Owner, in addition to her duties as president for the Facility, is a “controlling interest” of the Facility as defined in Section 408.803(7), Florida Statutes. Section 408.803(7) defines a controlling interest as, “(a) The applicant or licensee; (b) A person or entity that serves as an officer of, is on the board of directors of, or has a 5-percent or greater ownership interest in the applicant or licensee; or (c) A person or entity that serves as an officer of, is on the board of directors of, or has a 5-percent or greater ownership interest in the management company or other entity, related or unrelated, with which the applicant or licensee contracts to manage the provider.” § 408.803(7), Fla. Stat. (2015). 28. Under Florida law, the Agency may revoke any license issued under Section 429.14, Florida Statutes (2015) for: ... (f) Failure to comply with the background screening Page 7 of 11 standards of Chapter 429, Part I, Section 408.809(1), Florida Statutes, or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2015). 29. By virtue of the Owner’s arrest and pending criminal charges for the disqualifying offenses of uttering forged instruments and forgery, her continued 50% ownership of the Facility, and her service as an officer of the Facility, the Respondent has violated the minimum requirements of Florida law as stated in Chapters 408, 429 and 435, Florida Statutes (2015). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to revoke the license of the Respondent to operate this assisted living facility. Wa, wi A. Vivo, Senior Attorney Florida Bar No. 0563056 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3690 (Direct) (850) 922-9634 (Facsimile) NOTICE Pursuant to Section 120.569, F.S., any party has the right to request an administrative hearing by filing a request with the Agency Clerk. In order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), F.S., however, a party must file a request for an administrative hearing that complies with the requirements of Rule 28-106.2015, Florida Administrative Code. Specific options for administrative action are set out in the attached Election of Rights form. The Election of Rights form or request for hearing must be filed with the Agency Clerk for the Agency for Health Care Administration within 21 days of the day the Administrative Complaint was received. If the Election of Rights form or request for hearing is not timely received by the Agency Clerk by 5:00 p.m. Eastern Time on the 21st day, the right to a hearing will be waived. A copy of the Election of Rights form or request for hearing must also be sent to the attorney who issued the Administrative Complaint at his or her address. The Election of Rights form shall be addressed to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630, Facsimile (850) 921-0158. Any party who appears in any agency proceeding has the right, at his or her own expense, Page 8 of 11 to be accompanied, represented, and advised by counsel or other qualified representative. Mediation under Section 120.573, F.S., is available if the Agency agrees, and if available, the pursuit of mediation will not adversely affect the right to administrative proceedings in the event mediation does not result in a settlement. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights were served to the persons or entities named below on this day of , 2016. . a AW Viv6, Senior Attorney Florida Bar No. 0563056 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3690 (Direct) (850) 922-9634 (Facsimile) Ana Alvarez Catherine A. Avery President Manager, Assisted Living Unit Palm Gardens Manor, Inc. d/b/a Palm Gardens | Agency for Health Care Administration Manor III (Electronic Mail) 5835 West 14" Lane Hialeah, Florida 33012 (Certified Mail — 91 7199 9991 7033 6477 5057) Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration (Electronic Mail) Page 9 of 11 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: PALM GARDENS MANOR, INC. d/b/a PALM ACHA No. 2015012839 GARDENS MANOR III ELECTION OF RIGHTS This Election of Rights form is attached to a proposed agency action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights may be returned by mail or by facsimile transmission, but must be filed with the Agency Clerk within 21 days by 5:00 p.m., of the day that you receive the attached proposed agency action. If your Election of Rights with your selected option is not received by AHCA within 21 days of the day that you received this proposed agency action, you will have waived your right to contest the proposed agency action and a Final Order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter! 20, Florida Statutes, and Chapter 28, Florida Administrative Code.) Please return your Election of Rights to this address: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: 850-412-3630 Facsimile: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit the allegations of facts and conclusions of law contained in the Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit the allegations of facts contained in the Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Administrative Complaint and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. Page 10 of 11 PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed agency action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1, The name, address, telephone number, and facsimile number (if any) of the Respondent. 2. The name, address, telephone number and facsimile number of the attorney or qualified representative of the Respondent (if any) upon whom service of pleadings and other papers shall be made. 3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. 4. A statement of when the respondent received notice of the administrative complaint. 5. A statement including the file number to the administrative complaint. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees, Licensee Name: Contact Person: Title: Address: Number and Street City Zip Code Telephone No. Fax No. E-Mail (optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Printed Name: Title: Page 11 of 11 USPS.com® - USPS Tracking® English Customer Service USPS Mobile Page 1 of 2 Register / Sign In USPS Tracking® Tracking Number: 9171999991703364775446 Product & Tracking Information Postal Product: Features: First-Class Mail® Certified Mail” DATE & TIME STATUS OF ITEM January 28, 2016 , 10:31 am Delivered LOCATION HIALEAH, FL 33012 Your item was delivered ai 10.34 am on January 28, 2016 in HIALEAH. FL 33012. . Departed USPS Destination January 27, 2016 , 10:23 pm Facility January 23, 2016, 4:21 pm Arrived at USPS Destination Facility January 21, 2016 , 10:10 pm Departed USPS Facility January 21, 2016 , 10:08 pm Arrived at USPS Origin Facility January 21, 2016 , 6:43 pm Departed Post Office January 21, 2016 , 5:14 pm Picked Up Track Another Package Tracking (or receipt) number [or 7199999 1703364775446 OPA LOCKA, FL 33054 OPA LOCKA, FL 33054 TALLAHASSEE, FL 32301 TALLAHASSEE, FL 32301 TALLAHASSEE, FL 32308 TALLAHASSEE, FL 32308 Track It WW, Customer Service > awa Have questions? We're here to hetp. on Get Easy Tracking Updates > 4 Sign up for My USPS. Available Actions Return Receipt Electronic Text Updates Email Updates Manage Incoming Packages Track all your packages from a dashboard. No tracking numbers necessary. Sign up for My USPS > https://tools.usps.com/go/TrackConfirmAction?tLabels=9 17199999 1703364775446 02/08/2016 USPS.com® - USPS Tracking® English Customer Service USPS Tracking® USPS Mobile Tracking Number: 9171999991703364775057 Product & Tracking Information Postal Product: DATE & TIME January 12, 2016 , 2:55 pm Features: Certified Mail” STATUS OF ITEM Delivered LOCATION HIALEAH, FL 33012 Your item was delivered at 2:55 pm on January 12, 2016 in HIALEAH, FL 33012 January 11, 2016 , 12:07 am January 10, 2016 , 12:13 pm January 9, 2016 . 8:33 pm January 9, 2016 , 12:00 pm January 9, 2016 , 3:38 am January 8, 2016 , 11:06 pm January 8, 2016 , 5:27 pm danuary 8, 2016 , 4:37 pm Departed USPS Facility Arrived at USPS Facility Departed USPS Facility Arrived at USPS Facility Departed USPS Facility Arrived at USPS Origin Facility Departed Post Office Picked Up Track Another Package Tracking (or receipt) number https://tools.usps.com/go/TrackConfirmAction?tLabels=9 17199999 1703364775057 OPA LOCKA, FL 33054 OPA LOCKA, FL 33054 ORLANDO, FL 32824 ORLANDO, FL 32824 TALLAHASSEE, FL 32301 TALLAHASSEE, FL 32301 TALLAHASSEE, FL 32308 TALLAHASSEE, FL 32308 Track It * Page 1 of 2 Register / Sign In Customer Service > Have questions? 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Docket for Case No: 16-001269

Orders for Case No: 16-001269