STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH DISABILITIES,

Petitioner,

vs.

CARING ANGELS, INC., RAVI KUMAR, PRESIDENT,

Respondent.

/

Case No. 18-2137FL

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (“DOAH”), on July 2, 2018, by video teleconference at sites located in St. Petersburg and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Trevor S. Suter, Esquire

Agency for Persons with Disabilities Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399-0950

For Respondent: Ravi Kumar, pro se

Caring Angels, Inc. 5685-91st Avenue North

Pinellas Park, Florida 33782

STATEMENT OF THE ISSUE

Whether the Agency for Persons with Disabilities (“APD”) should approve the application for licensure sought for the group home facility Catalina Group Home, owned and operated by Caring Angels, Inc. (“Caring Angels”).

PRELIMINARY STATEMENT

Petitioner received an application for licensure renewal from Respondent on February 9, 2018. Petitioner served Respondent with a Notice of License Application Denial dated March 29, 2018, which denied Respondent’s application for licensure. Respondent timely requested an administrative hearing before DOAH pursuant to section 120.57(1), Florida Statutes (2017). On April 27, 2018, the matter was referred to DOAH and was assigned Case No. 18-2137FL. Both parties appeared at the video teleconference hearing conducted in St. Petersburg and Tallahassee on July 2, 2018.

At the hearing, Petitioner presented the testimony of Don Pearson and Myra Leitold; and offered eight exhibits, all of which were admitted into evidence. Respondent presented the testimony of its president, Ravi Kumar, and offered no exhibits.

No transcript of the hearing was prepared; however, a CD of the hearing was filed on July 3, 2018. Petitioner filed its Proposed Recommended Order on July 13, 2018. Respondent filed its “Statement and Plea” on July 11, 2018. Additionally,

Respondent filed a “Respondent Statement” on July 16, 2018. The first two documents were timely filed. Although the second document filed by Respondent was filed three days after the

July 13, 2018, due date for filing post-hearing submittals, all three documents have been duly considered for purposes of the following Findings of Fact and Conclusions of Law.

References to statutes are to Florida Statutes (2017), unless otherwise noted.

FINDINGS OF FACT

1. APD is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habitation centers, and comprehensive transitional education programs pursuant to sections 20.197 and 393.067, Florida Statutes.

2. Respondent is an applicant for licensure of a group home facility. Caring Angels’ corporate officer, Ravi Kumar, submitted the completed application to APD on or about

   February 9, 2018.

   
   

3. At all times material, Ravi Kumar was the sole corporate officer of Florida corporations Sweet Home Manor, Inc., and Comfort Manor, Inc.

4. On or about September 7, 2005, the Agency for Health Care Administration (“AHCA”) took agency action against the license of Sweet Home Manor, Inc. On December 23, 2005, AHCA

   
   

   entered a final order that required Sweet Home Manor, Inc., to pay a $500 fine and a $209 survey fee.

5. On or about April 1, 2007, AHCA filed a three-count administrative complaint that sought to discipline the license held by Comfort Manor, Inc. The parties resolved this case via settlement agreement, signed by Ravi Kumar, wherein Comfort Manor, Inc., agreed to pay costs and a $500 fine. As part of that agreement, Comfort Manor, Inc., admitted to the allegations contained in the administrative complaint. A Final Order that adopted the settlement agreement was entered on September 7, 2007.

6. Between June 7, 2017, and June 9, 2017, Mr. Kumar’s facility, Comfort Manor Assisted Living Facility, Inc., was investigated by the Department of Children and Families (“DCF”). The complaint that initiated the investigation alleged that the conditions of Mr. Kumar’s facility were hazardous, in part, due to slippery floors. It was alleged that the slippery floors had caused one resident, R.B., to fall and consequently require hospitalization. The floors were so slippery that, upon entry into the facility, the DCF investigator, Mr. Pearson, immediately slipped and almost fell. After completing a thorough investigation of the facility, Mr. Pearson closed his investigation with verified findings of abuse, neglect, or exploitation against Ravi Kumar.

   
   

7. APD’s application for licensure contains a section titled “Affidavit.” Question one of the affidavit states, “Have you . . . been the party responsible for a licensed facility receiving an administrative fine?” Mr. Kumar answered “no.”

   Mr. Kumar’s answer was false and not accurate.

   
   

8. Question two of the affidavit states, “Have you . . . ever been identified as responsible for . . . the abuse, neglect, or exploitation of a vulnerable adult?” Mr. Kumar answered “no.” Mr. Kumar’s answer was false and not accurate.

9. Mr. Kumar testified that the answers were simply “mistakes.” Mr. Kumar compared his mistake to mistakes made by APD’s counsel, who used the wrong date in a discovery request made to Caring Angels, and other persons, including Mr. Pearson, who made a typographical error or two in the spelling of a subject’s name in his investigative report. However, these other noted “mistakes” were not made under oath, as was the signed and notarized affidavit by Mr. Kumar as part of his licensure application. Additionally, Mr. Kumar has known about his alleged mistake, since he received the APD’s March 29, 2018, denial letter. There is nothing in the record to demonstrate that

   Mr. Kumar made any attempt to fix the alleged error prior to the hearing.

10. With respect to the DCF investigation, Mr. Kumar stated that he was not aware of the verified findings. Mr. Kumar also

    
    

    stated that the cleaning of the facility floor did not cause his resident to fall, but rather the resident’s infirmity and brain damage actually caused the fall. To his credit, however,

    Mr. Kumar at least knew that he was being investigated by DCF. Investigator Pearson spoke to Mr. Kumar on the telephone. At the time of the investigation, Mr. Kumar, refusing to come to the facility, simply told Mr. Pearson that there was nothing wrong with the floor. Additionally, while Mr. Pearson’s investigation was precipitated by the fall of a resident, his personal observation of (and loss of balance on) the slippery floor confirmed for him the verified finding of a dangerous condition leading to the resident’s fall.

11. Mr. Kumar misrepresented material facts when responding to questions one and two in the affidavit section of his application for licensure.

12. Based upon the fall of a resident that led to a verified finding of abuse or neglect by DCF, Mr. Kumar was responsible for the abuse, neglect, or exploitation of a vulnerable adult.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administration Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

    
    

14. Generally, Petitioner, as the party asserting the affirmative of the issue in this proceeding, has the burden of proof. In the normal course of administrative proceedings, the petitioner is the applicant for licensure. However, in this matter, APD referred the case to DOAH with the agency as Petitioner and Caring Angels, the applicant for licensure, as Respondent. This does not change the burden of proof. The burden is upon the applicant seeking licensure to prove entitlement. Balino v. Dep’t of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977); Dep’t of Agric. & Consumer Servs. v. Strickland, 262

    So. 2d 893 (Fla. 1st DCA 1972). The level of proof is generally a preponderance of the evidence. Dep’t of Banking & Fin. v.

    Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). See also Davis v. Dep’t of Child. & Fam. Servs., 160 So. 3d 854, 857 (Fla.

    2015). Here, Caring Angels must prove by a preponderance of the evidence that its application for licensure should be approved.

15. Section 393.067 sets forth APD’s responsibilities regarding application procedures and provider qualifications. Section 393.0673 provides considerations pertaining to the denial, suspension, or revocation of a license. Section 393.0673(2) provides that the agency may deny an application for licensure submitted pursuant to section 393.067, if the applicant has failed to comply with the requirements of chapter 393 or the

    
    

    rules applicable to the applicant. § 393.0673(2)(a)3., Fla. Stat.

16. Specifically, the agency may deny an application for licensure submitted pursuant to section 393.067 if the applicant has “[f]alsely represented or omitted a material fact in its license application.” § 393.0673(2)(a)1., Fla. Stat. Mr. Kumar falsely represented or omitted a material fact in Caring Angels’ license application when he swore, under penalty of perjury, that none of his facilities had received an administrative fine in the past. Mr. Kumar made his second false representation in that same affidavit when he swore he had never been identified as responsible for the abuse, neglect, or exploitation of a vulnerable adult.

17. The two “no” answers in the licensure application affidavit constitute material misrepresentations in violation of the above-cited statutory provision that must result in the application’s denial. The defense of mistake is not valid when referring to sworn testimony given under oath in a notarized affidavit.

18. Accordingly, considering the various statutory and rule provisions cited above, APD was justified in denying Respondent’s application for licensure of a group home facility.

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 Caring Angels, Inc.’s, application for licensure.

DONE AND ENTERED this 17th day of July, 2018, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 17th day of July, 2018.

COPIES FURNISHED:

Ravi Kumar

Caring Angels, Inc. 5685-91st Avenue North

Pinellas Park, Florida 33782 (eServed)

Trevor S. Suter, Esquire

Agency for Persons with Disabilities Suite 380

4030 Esplanade Way

Tallahassee, Florida 32399-0950 (eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

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

Tallahassee, Florida 32399-0950 (eServed)

Gypsy Bailey, Agency Clerk

Agency for Persons with Disabilities Suite 335E

4030 Esplanade Way

Tallahassee, Florida 32399-0950 (eServed)

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: 18-002137FL

Orders for Case No: 18-002137FL