Findings Of Fact Respondent, L. D. Terry, operates a thirty-bed adult congregate living facility under the name of Golden Paradise at 1200 Old Dixie Highway, Delray Beach, Florida. The facility is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), and as such, is subject to that agency's regulatory jurisdiction. On June 9, 1986 James Valinoti, an HRS inspector, conducted a routine annual license renewal inspection of respondent's facility in the presence of the facility's administrator, Katherine Stevens. The inspection focused on all aspects of the facility's operations, including safety, physical plant, recordkeeping and sanitation. It was Valinoti's purpose to determine if the facility was in compliance with various requirements of Chapter 10A-5, Florida Administrative Code (1987) During the course of his inspection, Valinoti observed the following deficiencies: The facility did not document and place in its records the services delivered by a third party contractor (nurse) as required by Rule 10A-5.024(1)(a)4., FAC. The facility employed three or more staff but did not maintain a record of personnel policies, including state- ments of work assignments for each position as required by Rule 10A-5.024 (1)(a)5., FAC. The facility did not maintain a time sheet for all employees as required by Rule 10A-5.024(1)(a)7., FAC. The respondent failed to assure that there was at least one staff member within the facility at all times who had a certification in an approved first aid course and that the staff was free of communicable diseases as required by Rule 10A-5.019(5)(f), FAC. The facility failed to furnish each staff member with a copy of written policies governing conditions of employment including the work assign- ments of his position as required by Rule 10A-5.019(5)(h), FAC. The resident contract did not contain a refund policy if transfer of ownership, closing of facility or resident discharge should occur as required by Rule 15.024(1)(b)1., g., FAC. The facility failed to note in the residents' records the disposition of drugs after a resident had left the facility as required by Rule 10A- 5.0182(3)(a)7., FAC. The facility had no policies or pro- cedures for assisting residents in the making of appointments or providing transportation to and from appropriate medical, dental, nursing or mental health services as required by Rule 10A-5.0182(8) and (9), FAC. The facility did not participate in continuing in-service education on an annual basis at a minimum as required by Rule 10A-5.020(1)(c), FAC. The dietary allowances were not met offering a variety of foods adapted to the food habits, preferences and physical abilities of the residents, and prepared by the use of standardized recipes as required by Rule 10A-5.020 (1)(g), FAC. There was evidence of rodent dropping in the food storage room in violation of Rule 10A-5.020(1)(n)1. and 5., FAC. The facility did not assure that food service employees were free of communicable disease as required by Rule 10A-5.020(1)(n)15., FAC. Linoleum in the facility was peeling causing a tripping hazard and sinks and toilets were rusted in violation of Rule 10A-5.022(1)(a),(c), and (g), FAC. With the exception of item (a), which was unclassified, all deficiencies were Class III violations. After the inspection was completed, Valinoti discussed the deficiencies with the administrator and suggested ways to correct them. A letter was then prepared by the HRS area supervisor on July 23, 1986 and mailed the same date to Terry with a copy of the Classification of Deficiencies. That document provides a description of each deficiency, the class of deficiency and the date by which the deficiency must be corrected. Except for a requirement that the deficiency pertaining to rodent droppings be corrected immediately, Terry was given thirty days, or to August 23, 1986, in which to correct the cited deficiencies. Terry acknowledged he received a copy of the letter and attachments. On September 24, 1986 Valinoti reinspected respondent's facility. He found that none of the items had been fully correct. By letter dated September 29, 1986 HRS advised Terry of its findings and warned him that a "recommendation for sanction" would be made. It advised him further that another inspection would be made after October 29, 1986. On October 30, 1986 Valinoti made a second follow-up visit to respondent's facility. Valinoti found that all items had been corrected except item (j). The results of his inspection were reduced to a written report on November 13, 1986, a copy of which was sent to Terry. A year later, an administrative complaint against respondent was issued by HRS. Terry acknowledged, through admissions or testimony at hearing, that most of the allegations were correct but offered mitigating testimony as to why certain corrections were not made on a timely basis. When he purchased his facility in 1982, it was in a state of disrepair through neglect by the previous owner. Since then, he has attempted to upgrade the facility through a series of repairs and renovations. He currently has nineteen residents, most of whom were referred from a nearby mental health center. A mental patient is more difficult to care for, and this type of patient is prone to tear up furniture and equipment. Terry pointed out that he has only three employees, and they fully understand their duties and responsibilities. For this reason, he did not have documentation outlining their job assignments. When the June 9 inspection was made, Terry contended that HRS was in the process of implementing new rules, which he did not identify, and which he claims he did not understand. As evidence of his good faith, Terry pointed to the fact that all deficiencies except one were corrected by October 30, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of twelve Class III violations and one unclassified violation and that he be assessed a $1,250 civil fine to be paid within thirty days after the date of the final order entered in this matter. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989. COPIES FURNISHED: Leonard T. Helfand, Esquire North Tower, Room 526 401 Northwest Second Avenue Miami, Florida 33128 John W. Carroll, Esquire Post Office Box 31794 Palm Beach Gardens, Florida 33410 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner's request for exemption from disqualification from employment in a position of trust should be granted.
Findings Of Fact AHCA is a state agency required to conduct background screenings for individuals who provide certain types of healthcare related services under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner is seeking to become owner of a licensed nurse registry for pediatric and special needs care. As such, Petitioner is required to have a background screening check pursuant to section 408.809. Petitioner is interested in the field because his daughter was born with several disabilities. After completing Petitioner's background screening, Petitioner's 2011 disqualifying felony criminal offenses of owning, operating, or maintaining an assisted living facility without a license were identified. On March 6, 2019, Petitioner submitted a request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). In Petitioner's exemption package, he listed his work history, which included the following employment: Home Reach, LLC, from April 2013 to October 2013; Five Star Home Health from October 2013 to March 2014; unemployment from March 2014 to August 2014; Home Reach, LLC, from August 2014 to August 2018; and a leave of absence from Home Reach, LLC, starting August 2018. Petitioner also detailed his plans to comply with AHCA's laws and regulations in his exemption package. He explained that he has retained a consultant, Elisabeth Jean-Baptiste ("Jean- Baptiste"), to assist him. She is the director of the FEDEN Healthcare Education Institute, an entity that provides continuing legal and regulatory education in the healthcare field. Petitioner included in his exemption package documentation that he completed a 12-hour Adult Family Care Home course, which covered the rules and regulations for running a healthcare business. On May 15, 2019, as part of the exemption application process, Petitioner participated in a telephonic exemption hearing with AHCA. After the telephonic hearing and discussion, AHCA denied Petitioner's request for an exemption by letter dated May 30, 2019. Subsequently, Petitioner requested an administrative hearing. Disqualifying Offenses On May 26, 2011, Petitioner was arrested and charged with a two-count felony of operating, owning, or maintaining an assisted living facility without a license. Petitioner's criminal charges stem from him operating Heaven Sent Group Home, which he labeled "sober living" houses. At the two facilities Petitioner owned and operated, medication was distributed, and daily activities for the residents were performed without being licensed as an assisted living facility. On June 27, 2011, AHCA also charged Petitioner by Administrative Complaint in Case No. 2011001367 for operating Heaven Sent Group Home, which was the same unlicensed assisted living facility subject matter as the criminal Case No. 2011CF001679A. On or about September 20, 2011, Petitioner pled no contest in Case No. 2011CF001679A to the two felony counts of operating, owning, or maintaining an assisted living facility without a license. The court withheld adjudication and sentenced Petitioner to three years of probation, 100 hours of community service, court costs, and fines. On January 25, 2012, AHCA issued a Final Order in Case No. 2011001367, imposing a $99,000.00 fine for Petitioner's unlicensed activity. By letter dated October 2, 2013, Petitioner was notified that he completed his terms of probation and was no longer under the supervision of the Department of Corrections for Case No. 2011CF001679A. Hearing At hearing, Petitioner explained that he opened two facilities in 2007 to help the underprivileged. His residents included those that were released from incarceration or mentally ill and did not have place to live. He testified that most of his residents came from the courts or were referred by New Horizons. Petitioner denied receiving any AHCA notices sent to him regarding his operating the two unlicensed assisted living facilities prior to the 2011 cease and desist on Heaven Sent Group Home. Petitioner further claimed that he did not know he needed a license for the facilities he was running. Petitioner did admit that he was completely responsible for his wrongdoings and not being educated and aware of the rules and regulations regarding operating a group home or an assisted living facility. During the final hearing, Petitioner presented the testimony of Roshina Lakram, who testified that she knew Petitioner for 30 years and that he had been helping people struggling with drugs and mental illnesses with his sober living homes. Vanessa Risch ("Risch"), the health services and facilities consultant manager for AHCA's Background Screening Unit, testified at hearing that in making the decision to deny Petitioner's exemption, AHCA considered Petitioner's entire case file including exemption application, education and training records, personal letters of support, personal attestations, one employment reference letter, and Petitioner's explanations during the telephonic exemption hearing. AHCA concluded that Petitioner was not particularly candid during the May 15, 2019, telephonic hearing, because Petitioner failed to mention prior to and during the teleconference that he has the outstanding AHCA fine in the amount of $99,000.00 from his unlicensed activity from Case No. 2011001367. Although Petitioner had some positive letters of recommendation, his failure to be candid and honest in addition to his lack of effort to make any payments toward the outstanding AHCA fine was a major consideration in the denial of Petitioner's exemption. Risch testified that Petitioner failed to meet section 435.07(3)(a) and had not demonstrated by clear and convincing evidence that he was rehabilitated. At hearing, Petitioner also failed to readily admit that he owed the $99,000.00 fine to AHCA when testifying. First, Petitioner did not own up to currently owing the monies, then testified that maybe it happened while his daughter was in the hospital, and finally inquired about a payment plan. At the time of the hearing, Petitioner had not paid any amount towards the fine nor attempted to negotiate a payment plan agreement with AHCA to pay off the delinquent fine. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner was both credible and passionate in his testimony about his future and not wanting to work for other individuals for the rest of his life. He even testified that since it was America, he wanted his own. However, Petitioner failed to testify convincingly regarding the monies owed to AHCA. He was dismissive about his past instead of being honest and forthright regarding the outstanding $99,000.00. Such lack of candor and accurateness regarding the delinquent AHCA fine establishes Petitioner's ineligibility for an exemption from disqualification because he has not demonstrated by clear and convincing evidence that he has been rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency for Health Care Administration enter a final order upholding its denial of Petitioner's request for an exemption from disqualification for employment. DONE AND ENTERED this 10th day of October, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 10th day of October, 2019. COPIES FURNISHED: Chan Gobin 5839 Northwest Drill Court Port St. Lucie, Florida 34986 Lindsay Worsham Granger, Esquire Agency for Health Care Administration Building 1, Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Findings Of Fact Respondent is an Adult Congregate Living Facility licensed by Petitioner. Maria Mier is a district programs specialist employed by Petitioner in its Adult Congregate Living Facility program. She was assigned the responsibility of working with Respondent to assure Respondent's compliance with Petitioner's regulations on May 5, 1981. Petitioner presented no testimony regarding the conditions at the Aloha prior to that date. Isabell Arango is a long-term care administrator for Petitioner. She has the responsibility for assessing the amount of administrative fine to be imposed as a result of any violation of Petitioner's regulations. In doing so, she reviews the recommendation of the specialist in charge of that facility and then applies her personal set of guidelines, which were not introduced in evidence. Mier and Arango signed both Administrative Complaints under consideration herein. Petitioner filed a Petition for the Appointment of a Temporary Receiver to operate the Aloha. Petitioner's Petition was heard in the circuit court of the 11th Judicial Circuit in and for Dade County, Florida, on May 15, 1981, and a receiver recommended by Petitioner was appointed to operate and manage the facility. By order entered June 11, 1981, a circuit court judge granted an Agreed Motion for Substitution of Court-Appointed Receiver and appointed a substitute receiver recommended by the Petitioner. By order entered October 5, 1981, a circuit court judge granted the Moha's Motion to Terminate the Receivership. On May 4, 1981, a resident of the Aloha was found naked by the police somewhere outside of the facility. He was taken to Jackson Memorial Hospital, and his daughter was contacted. Adult Congregate Living Facility residents are free to come and go as they wish and do not require permission from facility personnel in order to be allowed to leave the facility. The resident located by the police had left the facility on a regular basis in the past, and no evidence was offered to indicate the resident in question would be likely to be in danger at any time that he was away from the facility or that there had been any prior problems regarding his absence from the Aloha. On November 10, 1981, Mier went to the Aloha to investigate a complaint from a resident that an envelope addressed to her containing a check had been opened. Mier did not see any opened mail at the Aloha and did not observe the facility's procedure for handling residents' mail. On December 17, 1981, Mier prepared a citation for that complaint and had the citation delivered to the administrator of the Aloha, although the citation itself advised that Petitioner considered the alleged deficiency to have been corrected as of December 1, 1981. (These facts form the basis for an allegation found in the Administrative Complaint filed in Case No. 82-179.) On January 20, 1982, Petitioner received a complaint from a different resident that an envelope addressed to her had been opened. On February 2, 1982, the same resident filed with Petitioner a written authorization requesting that the Aloha personnel open her mail for her. (These facts form the basis for an allegation found in the Administrative Complaint filed in Case No. 82-737.) According to the facility's records, during June, 1981, a resident refused to take medication on numerous occasions. The records did not reflect that the resident's doctor was notified. A resident in an Adult Congregate Living Facility cannot be forced to take medication. The resident in question had a history of drug and alcohol addiction, and his physician had advised the staff at the Aloha to withhold any medication from him at any time they believed he had been drinking due to the dangerous combination of his medication and alcohol. On July 29 and August 3, 1981, 15 residents observed in the lobby had foul body odor and dirty clothing. Four male residents needed shaving. If a resident of an Adult Congregate Living Facility does not wish to shave or wants to wear dirty clothing, personnel at the facility cannot force that resident to shave or to remove dirty clothing. On July 19, 1981, one resident of the Aloha was determined by a physician to be in need of nursing home care, services which the Aloha is not licensed to provide. On July 29, 1981, that resident was still at the Aloha. Only a medical doctor can order a transfer of a resident from an Adult Congregate Living Facility to a nursing home. Once the doctor orders it, the Adult Congregate Living Facility is in charge of making arrangements. If no nursing home beds are readily available, then a unit within the Petitioner's organization is in charge of placement into nursing homes. A wealthy patient can be placed easily; placement for a Medicaid patient may take time. On August 3, 1981, 24 out of 27 resident files reviewed lacked the required physician's statement regarding the resident's physical condition. Those records were brought into compliance, and Mier knows of no medical problems involving those 24 residents during the time of noncompliance. On August 3, 1981, the admission/discharge register for the residents of the Aloha was not properly maintained. The register was subsequently brought into compliance. On August 3, 1981, seven out of 27 resident files reviewed lacked a properly executed contract for services between the resident and the Aloha. Seven contracts had the resident's date of admission as the date the contract was signed, although the charges listed in the contract were effective after the admission date. This deficiency was subsequently remedied. On August 3, 1981, 23 out of 27 resident files reviewed lacked complete demographic data, i.e., the information pertinent to a death certificate. On August 3, 1981, four out of 24 personnel records reviewed lacked references in the employment application, and one record lacked the employment application. On August 3, 1981, nine out of 24 personnel files reviewed lacked the proper documentation that the employee was free of communicable diseases. Respondent admits that during surveys conducted on June 2, June 15, July 17, August 3 and November 2, 1961, the following facility maintenance and housekeeping standards were violated: Strong urine odors in resident rooms; Lack of toilet supplies in bathrooms; Inoperable drapes in resident rooms; Broken fixtures in resident bathrooms; Presence of vermin in the locked physician's examination room; A broken corner on a mirror in a resident's room; Two areas of cracked tile in the dining room; Furniture in need of repair. Mier, who conducted the inspections, has no knowledge as to what furniture was in need of repair. Petitioner conducted inspections of the facility's physical plant on June 2, June 15 and November 2, 1981. An additional inspection was commenced on July 29 and was concluded on August 3, 1981. On June 2, Rooms 25 and 59 had no air conditioners, but both rooms had large windows which opened for ventilation. On July 29, 1981, the air conditioning units in Rooms 31 and 40 were not working. On July 29, 1981, Rooms 27 and 73, which were being used for storage, lacked proper ventilation from either air conditioning or windows. On July 29, 1981, Rooms 1 and 10 had light bulbs missing from fixtures in the bathrooms. New light bulbs were installed while Mier was still present. (c) On July 29, 1981, Rooms 36, 40, 60, 68 and 70 lacked non-slip safety devices in the bathrooms. On November 2, 1981, only Room 36 of those inspected on July 29 still lacked non-slip safety devices. Additionally, non-slip safety devices were missing in the bathrooms of Rooms 46, 48 and 57. On July 29, 1981, the Aloha lacked handrails in 43 resident bathrooms. The Aloha purchased over 40 handrails, the total number that could be located in Miami at the time, and placed an order for an additional 45. The Aloha filed a copy of that order with Petitioner at the time. On each of her inspections, Mier found the second floor lobby to be uncomfortably hot. She therefore determined that the lobby was unusable and that the facility, therefore, did not comply with the required 35 square feet per resident in common-use areas. She did not take the temperature of the area which she determined to be uncomfortably hot on any of those occasions. She does not know the measurements of the second floor lobby, and no evidence was introduced regarding the size of the common areas in order to determine whether the 35- square-foot-per-resident requirement was met. Mier admits that based upon her recommendation, Aloha installed fans in that lobby. An air conditioning unit was later placed on the roof in order to cool the second floor rooms even more. Martha Perez is a nutrition consultant for the Petitioner. She conducted inspections of the food service standards at the Aloha on June 3 and November 3, 1981. On June 3, 1981, the Aloha had 129 residents. The chart of one of those residents indicated a need for a diabetic diet. Perez found no diabetic foods or special menus regarding a diabetic diet at the Aloha. On November 3, 1981, the Aloha still had 129 residents. Perez found no special provision for anyone needing a special diet but was also unable to identify anyone residing at the Aloha whose file indicated a need for a special diet. On June 3, 1981, the Aloha had only a one-and- a-half days' supply of non-perishable food, rather than the one-week's supply required. On November 3, 1981, the emergency food supply had been increased so that it was sufficient for two and a half days. On June 3, 1981, Perez found frozen raw meat being defrosted at room temperature. On November 3, 1981, Perez found a fully cooked meatloaf cooling off on the stove.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT: A final order be entered dismissing the Administrative Complaint filed against Respondent in Case No. 82-179 and further dismissing the Administrative Complaint filed against Respondent in Case No. 82-737. DONE and RECOMMENDED this 1st day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1982. COPIES FURNISHED: Martha F. Barrera, Esquire Department of HRS 1320 South Dixie Highway Coral Gables, Florida 33146 Barry L. Halpern, Esquire Koger Executive Center, Suite B-106 8405 NW 53rd Street Miami, Florida 33166 David H. Pingree, Secretary Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the record compiled herein, the following relevant facts are found. By its Administrative Complaint filed on August 10, 1981, Petitioner's district administrator notified Respondent that the Department intended to impose a civil penalty in the amount of two hundred dollars ($200.00) based on the fact that Respondent denied to one of Petitioner's employees the right of entry into Simmons Hesperides Home For The Elderly. Simmons Hesperides Home For The Elderly is an adult congregate living facility (ACLF) licensed to operate as such pursuant to Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code. The facility is located at 4710 Hesperides Street in Tampa, Florida. The facility was licensed as an ACLF on December 2, 1980. Petitioner's program specialist, Alice Adler, made a periodic visit to Respondent's facility on June 23, 24 and 25, 1981, to perform a routine check of Respondent's operation to determine compliance with the applicable rules and regulations of the Department. During the June, 1981, visits, Ms. Adler advised Respondent that she did not have on hand a seven-day supply of non-perishable food to meet nutritional needs of residents and she was, therefore, in violation of Rule 10A-5.10(1)(k), Florida Administrative Code. Ms. Adler memorialized this deficiency by completing a deficiency report, a copy of which was provided Respondent. Approximately one week later, on July 1, 1981, Ms. Adler made another check of Respondent's facility to determine if Respondent was in compliance with the above cited rule requirement, at which time Respondent denied Ms. Adler the right of entry into the facility. Ms. Weinchowski was thereafter advised that her failure to permit her (Ms. Adler) to enter the facility could result in the imposition of a civil fine. Ms. Weinchowski, the owner/operator of Simmons Hesperides Home For The Elderly admitted that she denied Ms. Adler the right of entry into the facility on July 1, 1981. Ms. Weinchowski voiced her opinion that she was being harassed by Ms. Adler and, therefore, she did not permit her to enter the facility on July 1, 1981.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department's notice of intent to impose a civil penalty in the amount of two hundred dollars ($200.00) upon Lea Weinchowski d/b/a Simmons Hesperides Home For The Elderly, be upheld. RECOMMENDED this 24th day of November, 1981, in Tallahassee, Florida. COPIES FURNISHED: Janice Sortor, Esquire Assistant District VI Legal Counsel 4000 West Buffalo Avenue Tampa, Florida 33614 Lea Weinchowski 4710 Hesperides Street Tampa, Florida 33614 JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1981.
Findings Of Fact During times material hereto, Respondent, Ray C. Dorman, is the owner and administrator of Scarlet Manor. Scarlet Manor is an adult congregate living facility at 13009 Lake Carl Drive in Hudson, Florida. The facility has a census of 40 beds and of that census, two residents are elderly patients and the remaining 38 residents are "hard core" mental patients who require intensive and specialized nursing care. Ray Dorman (Respondent) is named as the confirmed perpetrator of neglect (FPSS No. 90-091417) based on a finding that Respondent neglected a resident at the ACLF. A certified letter from Petitioner dated September 22, 1990, which was received by Respondent on September 27, 1990, advised Respondent that he could challenge the confirmed finding of neglect if he considered that the classification was inaccurate or that it should otherwise be amended or expunged. Although Petitioner maintains that Respondent failed to challenge the confirmed finding of neglect, Respondent and his wife, Winifred Dorman, credibly testified that on October 10, 1990, she accompanied Respondent to an HRS office in Clearwater to deliver a written request to challenge the finding of neglect. While the office which would have addressed Respondent's challenge (Mr. Morton's office) is situated in St. Petersburg, on that point, it appears that Respondent's wife was either unclear as to exactly where the Respondent's challenge to the confirmed classification was delivered and nothing more. Respondent's facility has been the subject of regular survey reports wherein it was determined that Respondent's facility was deficient in maintaining minimum licensure requirements based on inspection surveys dating back to September, 1989. Mrs. Diane Cruz, a human services surveyor specialist employed by Petitioner, was part of a three (3) member team of surveyors at Respondent's facility during late September, 1989. During the September, 1989 survey, it was determined that Respondent's facility was deficient in several areas including fiscal policies, facility records, client records, medication records, staffing, food service standards, maintenance and housekeeping standards, resident care, admission criteria and fire safety standards. In all of the cited areas, Respondent corrected the deficiencies and no cited deficiency was outstanding at the time of the hearing herein. Significantly, of the numerous deficiencies that Respondent was cited, only three of the deficiencies were repeat deficiencies during the annual 1990 annual survey. Respondent's facility is a fairly new and modern facility and Respondent prides himself in providing his residents the high degree of nursing services which the residents of his ACLF require. In this regard, in each instance wherein Respondent was cited for deficiencies, the matter was corrected by the time that the follow-up survey was conducted with only two exceptions. Regarding those exceptions, Respondent credibly testified that he had undertaken a good faith effort to correct the deficiency by the time of the follow-up survey. In any event, all of the cited deficiencies were corrected and Respondent has abided by the terms of any restrictions including the payment of any administrative fines which were imposed by Petitioner. Such conduct evidences that Respondent is conscientious in the operation of his adult congregate living facility and, to his credit, more than one of and Petitioner's witnesses testified that Respondent operates a good ACLF.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent a conditional license to operate Scarlet Manor as an adult congregate living facility. 1/ Afford Respondent an opportunity to challenge the confirmed classification naming him as the perpetrator in FPSS Report No. 90-091417 as soon as practical. DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The petitioner Lindsey is the owner and operator of the F & F Guest Home, an adult congregate living facility within the meaning of Florida Statutes, Section 400.401, et seq. At the time of her original licensure under the Adult Congregate Living Facilities Act, petitioner was granted a conditional license, thus providing her with an opportunity to correct deficiencies in her facility. On May 18, 1978, a representative from the Pinellas County Health Department conducted a sanitation elevation and a food establishment inspection of petitioner's facility. As illustrated on Exhibit 1, fourteen deficiencies were found with regard to the food service area. The sanitation evaluation noted that painting was needed throughout the kitchen, that the toilet floors were in need of repair and that better housekeeping was needed. (Exhibit 2) On August 2, 1978, respondent notified petitioner that her application for relicensure of the F & F Guests Home as an adult congregate living facility had been denied. It was determined by the respondent that the facility was in violation of Chapter 10K-6.10 and 10K-6.11, F.A.C., in that the facility had failed to pass the food establishment inspection. Many of the deficiencies listed in the inspection report had been corrected as of the date of the hearing. It was petitioner's intention to correct all deficiencies and do renovation work at the same time. She has had difficulty obtaining financing, and thus has not completed the work required for licensure.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent deny petitioner licensure until such time as it is adequately demonstrated that petitioner has complied with all licensing requirements. Respectfully submitted this 14th day of December, 1978, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Anne M. Lindsey 800 - 17th Avenue South St. Petersburg, Florida 33711 Barbara McPherson, Esquire District V Counsel Department of HRS Post Office Box 5046 Clearwater, Florida Gail Graham Adult Congregate Living Program Department of HRS Post Office Box 5046 Clearwater, Florida 33518 Emmett Roberts, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not Petitioner's facility meets the standards and qualifications to be eligible for licensure as an Adult Congregate Living Facility (ACLF).
Findings Of Fact Petitioner is the owner/operator of Old Cutler Retirement Home (Old Cutler) which is located at 19720 Old Cutler Road in Miami, Florida. Old Cutler has been functioning as an ACLF since at least 1981 and has been the subject of citations for violations of the fire and health safety codes which Respondent enforce. (Respondent's Dade County Health Report dated June 9, 1981.) On October 7, 1985, Respondent conducted a survey of Old Cutler and found the following deficiencies: the income and expense records for the facility were not available for review. services delivered for the facility by a third party contractor were not documented and placed in the residents' records. the facility did not have personnel policies and work assignments. the facility failed to provide assurances that (1) at least one staff member was on duty at all times who was certified in an approved first aid course; (2) staff that provided hygiene assistance was properly trained, and (3) staff was free of communicable disease. the facility did not have written job descriptions available for review. the employees were not furnished written policies governing conditions of employment. full bedside rails were observed in one resident's bed room. notations concerning drug disposition of a former resident's medication were not entered into the resident's file. the facility did not have policies and procedures to insure minimal leisure services for residents. the facility did not have procedures for assisting residents in making medical and related health appointments. residents' bedrooms did not have adequate space for hanging clothes. the facility did not have an adequate number of bathrooms for the residents. furniture at the facility was not kept in good repair. the facility smelled of a strong urine odor. the facility grounds were cluttered with debris and garden/construction equipment. the facility did not have a written main- tenance and housekeeping plan. Food Service irregularities (observed on October 7, 1985): the facility did not have food service procedures to provide for resident's nutri- tional care. the employee designated responsible for providing food service failed to demonstrate proper training of food service personnel purchasing sufficient food, (3) food service coordinated with other services, (4) duties were performed in a safe and sanitary manner, and (5) a knowledge of food that meets regular diets. the therapeutic diets did not meet the residents nutritional needs. there was no documentation of standardized recipes. menus were not planned, dated or posted as required. a week's supply of food was not on hand at the facility. food was not served at a safe, palatable temperature, as example, ambrosia fruit salad was kept and served at room temperature. food service was not properly carried out and the service was unsanitary in that spoiled and rotten food was stored in the refrigerator; the sinks and shelves were soiled, greasy and coated with debris; food was improperly thawed with standing hot water; hair restraints were not used; and at least one food service employee was observed smoking while preparing food. Additionally, on October 7, 1985, the laundry area did not provide the required one hour flame separation from the remainder of the facility. Also, the following fire safety irregularities were noted during the October 1985 survey: a manually operated fire alarm system with activating handles at each exit were not provided. smoke detectors powered by the electric current and interconnected to the fire alarm system was not provided. reports were not provided showing that the fire alarm system was tested quarterly. two means of egress are not provided for rooms 1 and 6. twenty-minute fire rated doors are not provided at all residents' doors. a commercial hood vented to the outside with an automatic extinguishing system is not provided. a key operated lock from the inside appears on the door of Room No. 13. there are obstructions in front of egress doors in room 3 and the dining area. the electric source supply to emergency lighting is provided by an extension cord. Petitioner has placed a mobile home immediately alongside the main facility at Old Cutler and the mobile home is situated closer than ten (10) feet from all sides of Old Cutler. The curtains, drapes, interior walls and ceilings of the mobile home do not provide either the requisite flame spread or are not flame proof as required. The mobile home is not equipped with approved smoke detectors in each room and the east/west end exits are either blocked or difficult to egress. Finally, there are no approved steps at the east exit of the mobile home. These conditions have existed in the mobile home since at least April 1981 and Petitioner has failed to take any corrective action to bring the above-noted irregularities into compliance (Respondent Exhibit 5). Respondent sent its staff along with members of the Ombudsman Council to again survey Petitioner's facility on March 9, 1987. As of that date, Petitioner has not shown any intent to correct the numerous deficiencies noted herein. Additionally, Petitioner advised Human Services Program Supervisor Alvin Delaney that she did not intend to bring her facility into compliance. As noted in the Appearances section of this Recommended Order, Petitioner did not appear at the hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: Respondent enter a Final Order denying Petitioner's application for licensure as an Adult Congregate Living Facility and cancel the conditional license which was issued to Petitioner. RECOMMENDED this 2nd day of April 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 2nd day of April 1987.
The Issue The issue is whether Petitioner's applications to renew licenses for two Residential Level II facilities in Davenport, Florida, should be denied and a $2,500.00 fine imposed for the reasons given in the Department of Children and Families' (Department) Amended Denial of Applications & Imposition of Fines issued on February 8, 2018.
Findings Of Fact Background The Department is charged with the responsibility of regulating the licensing and operation of residential treatment facilities pursuant to chapter 397, Florida Statutes (2017). Petitioner is a Delaware limited liability corporation authorized to conduct business in the State of Florida. Subject to the outcome of this proceeding, Petitioner is licensed to operate two Residential Level II facilities in Davenport under the name Cares Treatment. One facility is located at 146 Sunset View Drive (Case No. 18-0230), the other at 389 Sand Ridge Drive (Case No. 18-0234). The licenses were issued on December 15, 2016, and were to expire on December 14, 2017. Each license authorizes Petitioner to "provide substance abuse services for Adults and/or Children/Adolescents for the following component: Residential Level 2 (6 beds)."4/ Resp. Ex. 2. The Torres family home is not a licensed facility and services cannot be provided to residents who reside at that location. Petitioner is not licensed to provide services under the Partial Hospitalization Program (PHP), the Outpatient Program (OP), or the Intensive Outpatient Program (IOP).5/ These services require a separate license from the Department. In December 2017, Petitioner filed with the Department new applications to provide those services. However, the applications were denied and no appeal was taken. According to the renewal applications, Petitioner provides a "residential treatment facility for children and adolescents." Resp. Ex. 3. Each facility "is a free-standing residential facility which provides a structured living environment within a system of care approach for children, adolescents and adult[s] who have a primary diagnosis of mental illness or emotional disturbance and who may also have other disabilities." Id. Petitioner's facilities are a family-run business. Roberto Torres, Jr. (Mr. Torres), is the Chief Executive Officer and manager of the limited liability corporation; Cecilia Torres, his wife, is the Treasurer/Chief Financial Officer; Karla Torres, a daughter, is the Vice President/Chief Administrative Officer; Roberto Torres, III (the son), is the Secretary/Chief Information Officer; and Kristina Torres, a daughter, is the Ambassador/Chief Relationship Officer. Resp. Ex. 4. On November 27, 2017, Petitioner filed its applications for renewal of the two licenses. On December 1, 2017, the Department issued separate, but identical, letters denying both applications on the grounds they were not timely filed and they were incomplete. Resp. Ex. 5. On February 16, 2018, the Department was authorized to amend its letters of denial with a single amended denial document, which combined the original charges in the two letters into Counts I and II and added new Counts III, IV, and V. Resp. Ex. 1. The amended denial letter also seeks to impose a $2,500.00 administrative fine for violating various Class II rules. The specific rules are not identified in the original or amended charging documents, but the Department's PRO cites Florida Administrative Code Rule 65D- 30.003(1)(a) and "rules set forth in 65D-30" as the rules on which it relies. Because proper notice of the specific rules was not given, the rule violations have not been considered. The charges in the amended denial letter can be summarized as follows: Count I - The application for the facility at 146 Sunset View Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count II - The application for the facility at 389 Sand Ridge Drive was not timely filed and was incomplete in violation of sections 397.403 and 397.407(8). Count III - In November 2016, O.G., a 16-year-old female who had been recently discharged from a Baker Act facility, was admitted for treatment of substance abuse and mental health issues. After residing a few months at the Sunset View location, she was moved to the Torres family home, an unlicensed facility, where she remained for one or two months. By providing services at that unlicensed location, Petitioner violated section 397.401(1). She was then moved to the Sand Ridge location for two or three months before being returned to the Torres family home. She continued to receive substance abuse treatment at the family home until her discharge two or three months later. This constitutes a second violation of the same statute. While under the care of Petitioner, O.G. was subjected to actions which resulted in verified abuse reports against Mr. Torres and his son and contributed to the delinquency and exploitation of a child. Such conduct constitutes a threat to the health or safety of O.G. in violation of section 397.415(1)(d). Count IV - On October 19, 2017, J.W., who transferred from a Baker Act facility, was accepted by Petitioner for care and to receive "partial hospitalization program" services, which Petitioner is not licensed to provide. This constitutes a violation of sections 397.401(1) and 397.415(1)(a)2.c. J.W. was later discharged in contravention of his wishes and desires, which resulted in him relapsing and again being Baker Acted. This conduct constitutes a threat to J.W.'s health or safety in violation of section 397.415(1)(d). Count V - On January 23, 2018, the Department attempted to conduct an onsite inspection at both licensed facilities to review J.W.'s files, but was denied access to the premises. Petitioner later failed to respond to a written request by the Department for records relating to J.W. and O.G. This conduct constitutes a violation of section 397.411. The charging document asserts the conduct in Count III violates four Class II rules (not otherwise identified), for which a $500.00 fine should be imposed for each violation; and the conduct described in Count IV violates "applicable" Class II rules (not otherwise identified), for which a single $500.00 penalty should be imposed. Rule 65D-30.003(1)(a), the only rule cited in the Department's PRO, requires in relevant part that "all substance abuse components" be provided "by persons or entities that are licensed by the department pursuant to Section 397.401, F. S." The Charges Counts I and II Section 397.407(8) provides that "the Department may deny a renewal application submitted fewer than 30 days before the license expires." For Petitioner to meet this deadline, license renewal applications were due on or before November 15, 2017. An application is not considered filed until an application with the signature of the chief executive officer is submitted by the applicant. Around 3:30 p.m. on November 27, 2017, Mr. Torres spoke by telephone with Ms. Harmon, the Department System of Care Coordinator, regarding three new licensure applications he was filing. During the conversation, he was reminded that renewal applications for his two existing licenses had not been filed. Mr. Torres responded that he "would have to get on that." Properly signed renewal applications were submitted electronically at 5:00 p.m. and 5:42 p.m. that afternoon. In his cross-examination, Mr. Torres attempted to establish that the Department's website, the Provider Licensing and Designation System (PLADS), was periodically inoperative, and this prevented him from filing his on-line applications in a timely manner. However, there is no credible evidence to support this claim. In fact, after Mr. Torres raised this issue early on in the case, Ms. Harmon reviewed the activity log of Mr. Torres' two on-line applications and found that he began the application process in late August or early September 2017, but did nothing further until he hit the submit button after speaking with her on November 27, 2017. Also, during this same period of time, the PLADS program (to which all applicants have access) indicated that the applications were in "Waiting Approval" status, which meant the applications were "in process" but had never been submitted. Therefore, the applications were not timely filed.6/ Section 397.403(1)(f) requires license applications to include, among other things, "proof of satisfactory fire, safety, and health inspections." Neither application filed on November 27, 2017, included an updated Treatment Resource Affidavit, a current Fire and Safety Inspection form, and a complete and current Health Facility and Food Inspection form. Therefore, the applications filed on November 27, 2017, were incomplete. Count III On November 17, 2016, O.G., then a 16-year-old female, was admitted for treatment at the facility. O.G. had a history of bi-polar episodes, depression, and drug abuse. Before seeking treatment at Petitioner's facility, she had been Baker Acted twice. After learning about Petitioner's facility through another provider, O.G.'s family placed her in the facility to address her substance abuse and behavior problems. Upon admission, a treatment plan was devised by a licensed mental health counselor (LMHC), with a target completion date of May 17, 2017. Resp. Ex. 10. The treatment plan listed four staff members overseeing her case: Karla Torres (case manager); the LMHC; and S.F. and K.V., two "caregivers" or interns. Id. O.G. was discharged from the facility nine months later on August 14, 2017. Petitioner was paid approximately $166,000.00 by O.G.'s parents for her nine-month stay. O.G. was initially placed in the facility located at 146 Sunset Drive, where she remained for approximately three months. She was then moved to the Torres family home at 2347 Victoria Drive in Davenport for two or three months. The Torres home is not a licensed facility. By housing her at an unlicensed location and providing services during that period of time, Petitioner violated section 397.401(1), which makes it unlawful to provide substance abuse services at an unlicensed location. O.G.'s parents were unaware that their daughter was residing in the unlicensed family home. After Mr. Torres and O.G. "got into an argument," she was moved to the facility at 389 Sands Drive for several months. She then returned to the Torres home, where she remained for two or three months until she was discharged. By housing her at an unlicensed location and providing substance abuse services, Petitioner violated section 397.401(1) a second time. During her stay at the Torres home, Mr. Torres discussed "sex" with O.G.; he told her that he cheated on his wife; and he complimented her "quite a few times" for having "a nice body." He also told her that "18" was a special age and if she were 18 years old, things would be different. He added that her parents were "too strict." These highly inappropriate comments were especially egregious in nature, given the fact that O.G. was a minor with mental health and substance abuse issues, and she was living in the licensee's family home. One photograph of O.G. taken in the home shows Mr. Torres standing in the background donned in his pajamas. Resp. Ex. 16. These actions constitute a violation of section 397.415(1)(d)2., which makes it unlawful to commit an intentional or negligent act materially affecting the health or safety of an individual receiving services from the provider. Mr. Torres occasionally escorted O.G. to two local bars (Miller's Ale House and Marrakesh Hooka Lounge) in Champions Gate. On one visit to Miller's Ale House in April or May 2017, he purchased her a Blue Moon beer, even though she was a minor and in a substance abuse program. She consumed the beer in his presence while the two sat at the bar. Although Mr. Torres attempted (through argument) to deny the incident, O.G. filmed the event on her cell phone. Resp. Ex. 13. This action by him also constitutes a violation of section 397.415(1)(d)2. Petitioner argues in its PRO that the whole incident was a fabrication and the result of a conspiracy by O.G.'s father, the Tampa Police Department, and Department counsel. The contention is rejected. When O.G. was discharged from the residential treatment facility in August 2017, Petitioner enrolled her in another program, IOP, which required her to periodically return to the facility on weekends for further treatment. Her first return visit was the weekend of August 26, 2017. During the weekend visit, the son gave her a cell phone. O.G.'s admission document for the IOP program indicated she would be given IOP services for 60 to 90 days, with a goal of her being substance free at the end of that period. Resp. Ex. 24. There is no record of her being discharged from the program. The Department argues in its PRO that by providing IOP services to O.G., Petitioner was providing a service beyond the scope of its license. However, this allegation was not included in the amended charging document and has not been considered. See, e.g., Trevisani v. Dep't of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)(a licensee may not be disciplined for an offense not charged in the complaint). After being discharged from her original treatment plan on August 14, 2017, O.G. returned to her mother's home. Except for one weekend visit to Petitioner's facility for IOP services, she remained at home until September 16, 2017. That day, O.G. ran away from home with Preston, a resident she had met at Petitioner's facility. After leaving home, she went to Melbourne, and then to West Palm Beach. A Missing/Endangered Runaway Juvenile bulletin was posted by law enforcement on October 5, 2017. Resp. Ex. 11. During this period of time, Petitioner’s records show that O.G. was still enrolled in the unlicensed IOP program. Resp. Ex. 24. While in the West Palm Beach area, O.G. contacted the son on the cell phone he had given her and told him she had run away from home. She asked him to send her some money so that she could go to Tampa to work in a strip club. Because O.G. was not old enough to accept a wire money transfer, the son wired $600.00 to a friend of O.G., who gave her the money. Using the money provided by the son, O.G. traveled to Tampa and met the son on September 30, 2017. The two went to Todd Couples Superstore, where he purchased several adult entertainment outfits she could wear to audition for a job in a strip club. Resp. Ex. 12. He also purchased her various personal items at a Walgreens. The son then drove her to several clubs to audition for a job. After several auditions, she was hired by Scores Tampa, a local strip joint where "people take off their clothes for money." O.G., who was only 17 years old at the time, signed an employment contract on September 30, 2017, using a borrowed driver's license of S.F., a 21-year-old female. Resp. Ex. 15. S.F. was a former intern at Petitioner's facility and is listed as a member of the team staff on O.G.'s initial treatment plan. By that time, S.F. had left Petitioner's facility and moved back to Tampa. That same evening, O.G. began working in Scores Tampa. O.G. says she took off her clothes while performing. The son remained in the club while she worked. After she got off work at 2:00 a.m., he drove her to S.F.'s house. O.G. continued working at the club for the next few days. With the assistance of local law enforcement, O.G. returned to her mother's home on October 7, 2017. After she ran away from home, and even while working in the club, O.G. maintained contact with Mr. Torres through texts and Facetime and asked him not to report her whereabouts to anyone. Although O.G.'s mother spoke to Mr. Torres on several occasions after O.G. went missing in September 2017, neither Mr. Torres nor the son informed her of the daughter's whereabouts. On November 30, 2017, the Department received a report of alleged human trafficking and sexual exploitation of a child. The alleged perpetrator was the son, while the victim was identified as O.G. Because the son was an employee of Petitioner, an institutional investigation was conducted. The investigation was closed on December 26, 2017, with a confirmed report of Human Trafficking-Commercial Exploitation of a Child against the son. Resp. Ex. 17. During the investigation, Mr. Torres and members of his family declined to be interviewed or answer any questions. Instead, they referred all questions to their attorney. On February 6, 2018, the Department received another report of abuse involving Mr. Torres. The report alleged that in April or May 2017, Mr. Torres transported O.G. to a bar at Miller's Ale House in "Davenport" [sic] and purchased her a beer. After an institutional investigation, the file was closed on March 1, 2018, as verified for Substance Misuse – Alcohol against Mr. Torres. Resp. Ex. 18. See also Finding of Fact 18. Mr. Torres declined to participate in the investigation. By clear and convincing evidence, the Department established that the actions of Mr. Torres and his son presented a threat to the health or safety of O.G. in contravention of section 397.415(1)(d)2. Count IV J.W., who did not testify, is a 42-year-old male who was discharged from a hospital on October 9, 2017 (after being Baker Acted), and admitted to Petitioner's facility the same day to receive PHP services. He was diagnosed as having mental health and substance abuse issues and a history of suicidality. He voluntarily left the facility on November 9, 2017. In its PRO, Petitioner characterizes J.W. as "a disgruntled addict." While a resident at the facility, J.W. received a few video sessions with a Miami Springs psychiatrist, who was identified on the renewal applications as the facility medical director, and he was given online counseling sessions for two weeks by an LMHC, who resided in Palm Bay and worked as an independent contractor with the facility. Neither professional was told by Mr. Torres that Petitioner was not licensed to provide PHP services. By providing PHP services to J.W., Petitioner violated sections 397.401(1) and 397.415(1)(a)2.c. According to the LMHC, on October 24, 2017, she was directed by Mr. Torres, who is not a licensed clinician, to "discharge" J.W. from the PHP program and place him in a lower level of care, Sober Living. Resp. Ex. 25. This would still allow J.W. to remain a resident at the facility but not receive the PHP services. Although the charging document alleges that J.W. did not wish to be discharged from the PHP program, and this caused him to have a relapse in his condition and later Baker Acted again, there is no competent evidence to establish this string of events. Count V Section 397.411 requires all licensees to provide Department representatives access to their facilities and to allow the inspection of pertinent records. Based upon information from a provider in Jacksonville that Mr. Torres had requested its assistance in providing PHP services to J.W., the Department instituted an investigation of Petitioner. In January 2018, the Department attempted to conduct an onsite inspection of Petitioner's facilities and to review the files relating to J.W. The inspectors were denied entry. Thereafter, the Department sent a written request to Petitioner for the records of J.W. and O.G. No records were provided and Petitioner failed to respond to the request. These actions constituted a violation of section 397.411. At hearing, Mr. Torres contended (through argument) that because the Department had already taken preliminary action on December 1, 2017, to deny his applications, there was no requirement that he provide access to the facility or respond to written requests for records. This assertion has been rejected. See § 397.411(1)(c), Fla. Stat. (an application for licensure as a service provider constitutes full permission for an authorized agent of the department to enter and inspect at any time).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying the applications for renewal of Petitioner's two licenses. An administrative fine should not be imposed. DONE AND ENTERED this 27th day of September, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 27th day of September, 2018.
