The Issue Whether the license of Respondent should be revoked, annulled, withdrawn or suspended for allowing an unlicensed person to practice cosmetology in his salon.
Findings Of Fact An Administrative Complaint was filed on May 31, 1977 against Joel Garber charging: "That you, said JOEL GARBER on February 4, 1976 did allow an unlicensed person to practice Cosmetology in your salon at House of Glamour, Jacksonville, Florida." At the hearing the Respondent pled "no contest" but made the following statement: "There was a young man that worked in the area for some time, I think. It's been over a year and a half ago, so the exact times may not be familiar to me. But he worked there for about seven months un- licensed. He came to me and said, 'I would like to work for you.' I said, 'You get a license first.' He told me he made application for license and came to work for me, and in fact he did work and I could be mistaken, it may be on the violation notice, how long he did work, but he did in fact work for me two or three days without a license, and then at which time he went and took his exam, came back, waited until he received license, and continued to work for me. He is at this time licensed. All I can ask is I guess the Court's mercy that I did in fact violate the law, but it has since been remedied and corrected." The Respondent allowed an unlicensed person to practice in his salon for a short time.
Recommendation Send a letter of reprimand to Respondent for violating Section 477.02(7), Florida Statutes. DONE and ORDERED this 27th day of September, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire LaFace & Baggett, P.A. Post Office Box 1752 Tallahassee, Florida 32302 Joel Garber 5660 University Boulevard, West Jacksonville, Florida 32216
The Issue Whether Respondent has committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors in the State of Florida pursuant to Section 20.42 and Chapters 455 and 489, Florida Statutes. Respondent is an officer and registered agent for GT Handy Solutions, Inc. Neither he nor his company is registered or certified to perform electrical contracting in the State of Florida. Respondent holds only an occupational license from the City of Palm Coast. On or about May 17, 2006, in DBPR Case No. 2006-005919, Respondent was issued a Notice to Cease directing Respondent to immediately cease and desist from all unlicensed electrical contracting work. Sometime after that point, the Jacksonville investigative office of DBPR received a tip from the City of Palm Coast that Respondent was still in the area engaging in unlicensed activity. The Department set up a sting operation with the assistance of the Volusia County State Attorney's Office and the Flagler County Sheriff's Office. Leslie Floyd Walker is employed as an investigator in the Volusia County State Attorney's Office. As part of the sting operation, Ms. Walker posed as a homeowner and called unlicensed people asking them to give estimates for electrical work to be performed at 11 Floyd Court, Palm Coast, Florida. The names of the unlicensed persons to be called were provided by the City of Palm Coast and were persons who advertised in the Palm Coast area or who had been cited previously for performing work without a license. Mr. Torres was one of the unlicensed persons called by Ms. Walker. On January 23, 2007, Mr. Torres was contacted at the telephone number contained in an advertisement in the Service Directory of the Flagler Pennysaver. In response to Ms. Walker's call, Mr. Torres came to the house at 11 Floyd Court, and Ms. Walker told him she wanted to replace three ceiling fans with new ones, and a light fixture, remove an existing light and add a light at the home. Mr. Torres and Ms. Walker's conversation was preserved via videotape. Mr. Torres was concerned about the wiring at the home, and asked to see the attic space. After doing so, he gave Ms. Walker an estimate of $800 to do the work, indicating that he would have to do some rewiring in order to put in the new ceiling fan she wanted. The estimate contemplated Ms. Walker providing the new ceiling fans. Ms. Walker asked Mr. Torres for a written proposal, which he started to prepare. However, he asked her if it was possible to mail it to her, because he needed to be able to make a copy for himself. He asked her about scheduling for the job, and indicated that he would be available the next week. He also stated that while the fans could be changed out in a few hours, the wiring would be more extensive and made the job a two-day job. Mr. Torres never provided the written proposal, and when Ms. Walker called and said he could do the work, he did not go back. At hearing, he said that he did not do so because he knew doing the electrical work was beyond the scope of what he was allowed to do. He claimed that he never actually offered to do the work, but instead had merely said that this type of work could be done for $800. The undersigned has viewed the videotape of Mr. Torres' conversation with Ms. Walker, and carefully listened to the conversation. At no time did he indicate to Ms. Walker that he was unable to perform the work she described. To the contrary, he discussed with her the aspects of the job that would make it more extensive, and what efforts he would have to make regarding the rewiring. While he may have ultimately determined not to perform the work, the evidence is clear that he provided a verbal proposal to perform the work at the time that he met with Ms. Walker at 11 Floyd Court. The Department has incurred investigative costs in the amount of $164.23.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent has violated Counts I and II of the Administrative Complaint, assessing an administrative fine in the amount of $5,000.00 and imposing investigative costs in the amount of $164.23. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 George Torres GT Handy Solution, Inc. 43 Russo Drive Palm Coast, Florida 32164 Nancy S. Terrel, Hearing Officer Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact On or about July 18, 1988, Petitioner's representatives learned that Respondent's daughter was operating an ACLF, as defined in Part II of Chapter 400 Florida Statutes without having a license from Petitioner for such a facility. The facility was located at 1217 East 139th Avenue, Tampa, Florida. One of the residents in the facility at the time of Petitioner's employees' discovery of its unlicensed status had been recently transferred there from Respondent's licensed facility. Respondent knew her daughter's facility had been licensed by hotel and restaurant regulatory authorities. She also believed her daughter had obtained licensure from Petitioner for the operation of an ACLF. Testimony of Petitioner's witnesses that Respondent was aware of the absence of the facility's licensure by Petitioner is not credited in view of the testimony of Respondent and others to the contrary; also, Petitioner's employees did not include any incriminating statements of Respondent professing knowledge of such unlicensed status in their initial investigative reports in the matter. Uncontroverted testimony of Katherine H. Echevarria, a registered nurse of thirty years experience who holds a master's degree in nursing and is presently associated with research efforts of the College of Nursing at the University of South Florida, establishes that Respondent has a natural ability to lead and establish programs for disadvantaged older adults who are residents of Respondent's ACLF. Echevarria's testimony further establishes that Respondent possesses the character and competency required to operate her facility and provide continuing adequate care to residents.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered granting Petitioner's application for renewal of her license. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5455 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS Unnecessary to result reached. Addressed. Unnecessary to result reached. Addressed. Addressed. PETITIONER'S PROPOSED FINDINGS 1.-2. Adopted in substance. Unnecessary to result reached. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Edward A. Haman, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Arnold D. Levine, Esquire 100 South Ashley Drive Suite 1600 Tampa, Florida 33601-3429 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this matter are whether Respondent, Willine Gracia, operated an assisted living facility without the required license, thereby engaging in unlicensed activity; and, if so, the appropriate penalty.
Findings Of Fact The Agency is the state agency responsible for the licensure of assisted living facilities (“ALFs”) in the State of Florida. See Ch. 429, Part I; and Ch. 408, Part II, Fla. Stat. As part of its responsibilities, the Agency serves as the enforcement arm regarding the licensed (and unlicensed) activity and operation of ALFs. See gen., Chs. 408 and 429, Fla. Stat.; Fla. Admin. Code R. 58A-5 and 59A-35. Respondent owns a house located at 4502 Conley Street, Orlando, Florida. In January 2016, the Agency received a complaint alleging the unlicensed operation of an ALF at the 4502 Conley Street location. The Agency maintains records of ALF licenses and license applications pursuant to chapter 408 and rule 59A-35. Keisha Woods currently serves as an Operations and Management Consultant in the Assisted Living Unit for the Agency. Ms. Woods testified that she searched the Agency’s databases on October 26, 2016, and November 9, 2016, and found no record that Respondent was currently licensed as an ALF or had ever applied to be licensed as an ALF. Tresa Johnston is a Senior Human Services Program Specialist, also known as a “surveyor,” for the Agency. Ms. Johnston investigated the complaint on behalf of the Agency. On January 14, 2016, Ms. Johnston visited Respondent’s house located at 4502 Conley Street, Orlando, Florida. Ms. Johnston arrived around 8:30 a.m. Respondent was not present. Ms. Johnston knocked at the front door. An individual who Ms. Johnston later concluded was residing in the house, greeted her at the door and allowed her entry. Upon entering the house, Ms. Johnston met three individuals who she determined were living in the residence. She observed that the house contained three bedrooms and one bathroom. The residents informed Ms. Johnston that they stayed in two of the three bedrooms. Ms. Johnston also found personal effects in the bedrooms and bathroom that belonged to the residents. In the house, Ms. Johnston observed a combined living room/dining room area in which she found a piano, a small refrigerator, and a microwave. In the refrigerator, Ms. Johnston discovered several frozen meals and drinks. In the bathroom, Ms. Johnston did not find any toilet paper. She also noticed that the bathroom was lit only by a nightlight. On the doorway to the kitchen, Ms. Johnston encountered a sign that read, “Do not enter kitchen at any time.” The residents informed Ms. Johnston that Respondent forbad them from entering the kitchen. Disregarding the sign and entering the kitchen, Ms. Johnston saw that the refrigerator was chained and locked. She found canned foods on the counter and packaged food in the pantry. Ms. Johnston also discovered a dead rat on the floor. Ms. Johnston found the house was extremely cold. All three residents were wearing coats. The residents advised Ms. Johnston that Respondent did not allow them to manage the temperature. Respondent arrived at the house around 9:10 a.m. Respondent was carrying a plastic bag containing medication for all three residents. Upon entering the house, Ms. Johnston testified that she saw Respondent take several prescription bottles out of the bag, pour a dosage of medication into the caps of each bottle, and instruct the residents to ingest the medication. The residents then placed some medications in a daily pill box for a one-day supply. Respondent observed that one medication bottle was empty. She shook it and advised one of the residents, “I owe you one of these. I have to refill it.” Respondent, after giving the residents their medication, put the medication bottles back into the plastic bag. Ms. Johnston also heard Respondent declare that she would have to return in the afternoon to give a resident her medication. Thereafter, Ms. Johnston interviewed Respondent. During this interview, Respondent informed Ms. Johnston that she: does not live at 4502 Conley Street; is not related to any of the three residents; provides housing, meals, and manages medications for all three residents; cooks two meals a day for the residents. (The residents are supposed to eat a frozen meal for their third meal); does not allow the residents into the kitchen; keeps the residents’ medications in a locked cabinet in her home because two of the residents cannot take care of their own medications without her assistance; and generally arrives at the 4502 Conley Street location between 9:00 to 9:30 a.m. each day. Respondent also called the residents her “clients.” Respondent explained to Ms. Johnston that her clients were referred to her by a local hospital. Respondent explained to Ms. Johnston that she is paid to lodge two of the residents through a payee. She was in the process of obtaining a payee for the third resident. On January 22, 2016, Ms. Johnston contacted Anthony Alexander, who is a Representative Payee for the Social Security Administration. At the final hearing, Mr. Alexander explained that the Social Security Administration designated him a payee for certain individuals who have been determined to be unable to manage paying their own personal expenses with their Social Security benefits. Mr. Alexander testified that in his capacity as Representative Payee, he made rental payments to Respondent for two of the residents Ms. Johnston found staying at Respondent’s house. Mr. Alexander recounted that he made the rental payments through direct deposit to Respondent’s bank account. Mr. Alexander further stated that he mailed weekly stipend checks for the two residents to the 4502 Conley Street address. Mr. Alexander represented that his records show that the stipend checks were cashed. In addition, Mr. Alexander testified that, as of the date of the final hearing, he is still paying rent to Respondent for one of the residents. He is also still mailing a weekly stipend check for that individual to 4502 Conley Street, Orlando, Florida. Based on her personal observations and the information provided directly to her from Respondent and the three residents of 4502 Conley Street, Ms. Johnston concluded that Respondent was engaged in unlicensed activity by operating an ALF without a license. Therefore, on January 14, 2016, Ms. Johnston issued Respondent a Notice of Unlicensed Activity (the “Notice”). The Notice instructed Respondent to immediately cease operating an ALF without proper licensure. On February 1, 2016, Ms. Johnston revisited 4502 Conley Street. Ms. Johnston again asked a resident permission to enter the house. This time she was denied entry. However, she saw that two of the three residents she met during her initial visit on January 14, 2016, were still in the house. Based on her observations, Ms. Johnston determined that Respondent was continuing to engage in unlicensed activity after receiving the Notice on January 14, 2016. Respondent was not present at the final hearing. However, in her Election of Rights she presented to the Agency, Respondent wrote: I Willine Gracia have never owned or operated a non license facility. . . . I’ve never promoted myself as such. However, I did have renters in my home and at times some of them came through Lakeside Behavioral. Each of these ladies were independent and did not require supervision and could live on their own without a caregiver. . . . I only offered meals to those ladies who wanted that. I did not provide anything more. . . . I do live at 4502 Conley Street and this is my personal home, which I can prove not a ALF or business. Based on the competent substantial evidence in the record, the facts demonstrate that Respondent was operating an ALF as that term is defined in section 429.02(5). The evidence and testimony also establish that Respondent was engaging in this activity, without the proper license, from January 14, 2016, through February 1, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order finding that Respondent Willine Gracia operated an ALF without a license in violation of chapter 429. It is further recommended that the Agency impose an administrative fine in the amount of $18,000 against Respondent pursuant to section 408.812. DONE AND ENTERED this 9th day of December, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 9th day of December, 2016.
The Issue Whether the Respondent, a licensed assisted living facility (ALF), committed the violations alleged in the Administrative Complaint, and, if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing ALFs in Florida. Loving Care is licensed by Petitioner as a 16-bed ALF at 380 Northwest South River Drive, Miami, Florida. Adrian Goett is the principal owner and authorized representative of Loving Care. Adjacent to Loving Care is an independent living facility owned by Mr. Goett and referred to at the formal hearing as 3320 Northwest Seventh Avenue, Miami, Florida (the adjacent facility). The adjacent facility is not licensed as an ALF. A survey of Loving Care in May of 2012 revealed that the facility had 28 residents, which exceeded its licensed capacity by 12 residents. In June and July 2012, four former Loving Care residents moved from that facility to the adjacent facility. A fifth resident moved from Loving Care to an unknown address. Resident 1 was admitted to Loving Care on November 22, 2010, and was discharged from Loving Care on June 4, 2012. Resident 1 moved from Loving Care to the adjacent facility. Resident 2 was admitted to Loving Care on August 18, 2002, and was discharged from Loving Care on June 4, 2012. Resident 2 moved from Loving Care to the adjacent facility. Resident 3 was admitted to Loving Care on July 2, 2010, and was discharged from Loving Care on July 13, 2012. Resident 3 moved from Loving Care to the adjacent facility. Resident 4 was admitted to Loving Care on June 21, 2011, and was discharged from Loving Care on June 4, 2012. Resident 4 moved from Loving Care to the adjacent facility. A Form 1823 (Form 1823) is a health assessment form approved by Petitioner that is completed for each resident of an ALF upon admission and every three years thereafter. The form is also completed if the resident experiences a change of condition. A Form 1823 was completed for Resident 1 on October 25, 2011. That assessment reflected that Resident 1 needed supervision for bathing, dressing, eating, and self-care. The assessment reflected that Resident 1 needed assistance preparing meals, shopping, making telephone calls, handling personal affairs, and taking medication. Resident 1 needed daily oversight in the categories "observing wellbeing," "observing whereabouts," and "reminders for important tasks." A Form 1823 was completed for Resident 2 on June 16, 2011. That assessment reflected that Resident 2 needed supervision and daily reminders for self-care grooming. Resident 2 required supervision with preparing meals, and handling personal and financial affairs. Resident 2 also needed assistance with self-administration of medication. Resident 3 had no records at Loving Care on October 1, 2012, the date of a survey. No records were produced at the formal hearing for Residents 4 and 5. There was no evidence that the respective needs of Resident 1 or 2 changed from the dates of their assessments to the dates of their discharge from Loving Care. After the four former residents of Loving Care moved to the adjacent facility, Loving Care provided those residents cleaning services and food. The adjacent facility charged the former residents rent. There was no evidence that Loving Care or the adjacent facility provided supervision or assistance with the residents’ activities of daily living. There was no evidence as to how those needs were being met. During the survey on October 1, 2012, the surveyors found two locked medication carts in the adjacent facility. The Administrator of Loving Care was summoned to the area and produced a key that unlocked the medication carts. Inside the carts were prescription medicines for Residents 1, 2, and 4. There was no evidence regarding how the medications came to be in the locked medication carts. There was no evidence as to who had keys to the cart, other than Loving Care’s administrator. These medicines were packaged using bingo cards, which is the way medications are typically administered to institutional residents. A bingo card is a sheet, with each dose of medication sealed in a blister package that is punched out when the dose is administered. Mr. Goett testified that all five of the residents cited in the Administrative Complaint lived independently after they were discharged from Loving Care. Mr. Goett denied that the adjacent facility provided any assistance with activities of daily living or any other services to its residents that would require the adjacent facility to become licensed as an ALF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of April, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 4th day of April, 2014. COPIES FURNISHED: Adrian Goett Loving Care Retirement Services, Inc. 380 Northwest South River Drive Miami, Florida 33128 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
