STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR PERSONS WITH DISABILITIES,

vs.

Petitioner,

Case No. 19-4018FL

FIVE STAR GROUP HOME, OWNED AND OPERATED BY FIVE STAR GROUP HOME, INC.,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the Division of Administrative Hearings, heard this case on October 4, 2019, by video teleconference between sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Trevor Suter, Esquire

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

For Respondent: Sephlyn Mae Morris, Pro Se

Five Star Group Home 3513 3rd Street West

Lehigh Acres, Florida 33971

STATEMENT OF THE ISSUES

1. Did Petitioner, Agency for Persons with Disabilities (APD), prove by clear and convincing evidence that the Department of Children and Families (Department) verified that Respondent, Five Star Group Home, owned and operated by Five Star Group Home, Inc. (Five Star), was responsible for the abuse, neglect, or exploitation of a vulnerable adult?

2. If so, does the verified finding support revocation of Five Star's license under the authority of section 393.0673(1)(b), Florida Statutes (2019) 1/?

   PRELIMINARY STATEMENT

   
   

   APD issued an Administrative Complaint on July 19, 2019, seeking to revoke Five Star's license to operate a group home. Five Star requested a formal hearing to contest the proposed revocation. APD transmitted the matter to the Division of Administrative Hearings on July 29, 2019, to conduct the requested hearing. The undersigned scheduled the hearing for October 4, 2019, and conducted the hearing as noticed.

   APD presented the testimony of Myra Leitold, Sephyln Morris, and Cathy Regula. APD Exhibit 4 was accepted into evidence.

   Five Star presented the testimony of Sephyln Morris. Five Star Exhibit 1 was accepted into evidence.

   APD timely filed a proposed recommended order. Five Star did not file a proposed recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. Section 393.067, Florida Statutes, charges APD with licensing, regulating, and monitoring foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs.

   2. Sephyln Morris owns and operates Five Star. Five Star holds an APD-issued license to operate a group home.

   3. In April of 2019, Ms. Morris applied to renew Five Star's group home license. As part of the renewal process, APD performed a central abuse hotline records search to review Department cases involving abuse, neglect, or exploitation. During the inquiry, APD discovered that the Department had verified Ms. Morris as a perpetrator of abuse, neglect, or exploitation of a vulnerable adult.

   4. On June 4, 2018, the Department started an investigation into allegations that a nurse struck B.S., a vulnerable adult, at Winkler Court, a skilled nursing facility. B.S. was around

      80 years old and suffered from dementia, hypertension, and anxiety. B.S. was confined to a wheelchair. Ms. Morris was the nurse. She worked at Winkler Court in addition to owning and operating Five Star.

   5. After conducting its investigation, the Department concluded that Ms. Morris struck B.S. and that the blow caused him a physical injury. The Department consequently determined

      
      

      that Ms. Morris committed a verified act of abuse of a vulnerable adult.

   6. Ms. Morris acknowledged striking B.S. but denied striking B.S. in the face. She also explained that B.S. was violent and her blow was a reaction to his aggressive actions in a situation where other facility caregivers did not assist her. She did not deny that the Department verified the allegation of abuse.

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

      §§ 120.569 and 120.57(1), Fla. Stat.

      
      

   8. This is a penal action. As APD acknowledges, it bears the burden of proving the alleged violation by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); Help is on the Way, Inc.,

      v. Agency for Pers. with Disabilities, Case No. 11-1620 (Fla.

      
      

      DOAH February 3, 2012; APD April 16, 2012).

      
      

   9. Section 393.0673(2)(b) provides that APD may deny or revoke an application for licensure submitted pursuant to section

      393.067 if the Department has verified that the applicant is responsible for the abuse, neglect, or exploitation of a vulnerable adult.

      
      

   10. Whether the Department correctly verified the allegations of abuse is not an issue in this proceeding. Comfortable Living, In Good Hands v. Agency for Pers. with

       Disabilities, Case No. 14-0689 (Fla. DOAH July 2, 2014; APD July 18, 2014). The statute authorizes revocation if the Department made verified findings of abuse. See Smith v. Smith, 224 So. 3d 740, 745 (Fla. 2017) (The plain language of a statute governs.).

   11. Section 393.0673(1)(b) authorizes APD to revoke Five Star's license because of the verified finding of abuse.

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 revoking the license of Respondent, Five Star Group Home, owned and operated by Five Star Group Home, Inc.

DONE AND ENTERED this 8th day of November, 2019, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 8th day of November, 2019.

ENDNOTE

1/ All citations to Florida Statutes are to the 2019 codification unless otherwise noted.

COPIES FURNISHED:

Trevor S. Suter, Esquire

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Sephlyn Mae Morris Five Star Group Home 3513 3rd Street West

Lehigh Acres, Florida 33971 (eServed)

Danielle Thompson, Senior Attorney/Agency Clerk Agency for Persons with Disabilities

4030 Esplanade Way, Suite 309

Tallahassee, Florida 32399-0950 (eServed)

Barbara Palmer, Director

Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950 (eServed)

Francis Carbone, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

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: 19-004018FL

Orders for Case No: 19-004018FL