Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue Whether the Respondent’s group home license issued by the Agency for Persons with Disabilities (APD) should be revoked or otherwise disciplined on charges stated in an Administrative Complaint, APD License 5604-6GA.
Findings Of Fact The Respondent, Aspiring Ambitions, LLC, is owned and operated by Tanya Warren. The Respondent holds APD license 5604- 6GA to operate a group home for developmentally disabled residents on Spillers Avenue in Tampa. The license was issued in April 2017 and had no prior incidents of any kind until September 2017. Tanesha Clarke3/ was listed on the Respondent’s license application as a “director,” but the evidence was that Ms. Clarke was not an owner or director, but rather an employee providing direct care to residents and performing some additional duties for the Respondent. Count I On September 12, 2017, Ms. Clarke and another employee of the Respondent were on duty at the Spillers Avenue home. Ms. Clarke became frustrated when H.B., a resident in the home, urinated on the floor and couch. In her frustration, Ms. Clarke struck and kicked H.B., who was defenseless due to his disability. The other employee on duty did not immediately call the abuse hotline or report the incident to Ms. Warren. The next day, the incident was reported via the abuse hotline. The identity of the reporter is confidential by statute. It was not Ms. Warren, who still did not know about the incident. A sheriff’s office child protective investigator responded to the group home to investigate on behalf of the Department of Children and Families (DCF). It was quickly established that Ms. Clarke had physically abused H.B., and she was arrested. Ms. Warren could not be contacted immediately, and APD sent a licensing specialist to the home to help take care of the residents in Ms. Clarke’s absence until Ms. Warren arrived about 20 minutes later. Ms. Warren fully cooperated with the investigation. She denied having any reason to be concerned that Ms. Clarke would abuse a resident. Two of the three other staff interviewed, plus a social worker who provided services to residents of the group home, also denied ever seeing Ms. Clarke behave in an abusive manner towards a resident and denied having any reason to be concerned that Ms. Clarke would abuse a resident. The staff member who was on duty with Ms. Clarke on September 12, 2017, stated that she had seen similar behavior by Ms. Clarke previously but did not report it to Ms. Warren or to anyone else. The investigation verified the abuse by Ms. Clarke, and APD licensing explained to Ms. Warren that her license would be in jeopardy if Ms. Clarke continued to work at the group home. Ms. Warren understood and fired Ms. Clarke. Ms. Warren also provided additional in-service training to the rest of her staff on the Respondent’s zero tolerance for abuse and on what to do and how to report incidents of abuse against residents of the facility. No further follow-up by the child protective team was deemed necessary. Count II On November 24, 2017, which was the Friday after Thanksgiving, a resident of the Spillers Avenue group home bit another resident, A.S., on the shoulder. The bite was fairly severe and resulted in a red bite mark. On that evening, there were five residents and only one direct care employee at the home. A second employee who was scheduled to work that evening called in sick and arrangements were not made to replace the sick employee for the evening. Because of their disabilities, the Respondent’s residents that evening were considered in moderate need of supervision, and two direct care employees were required to be on duty to meet staffing requirements. The Respondent’s employee on duty that evening noticed the bite mark while bathing A.S. and made a record of it in the home’s log. She did not call the abuse hotline or report the incident to Ms. Warren. The employee, who had been working for the Respondent for a few months, had not been trained on the policy of zero tolerance for abuse, including what to do and how to report in the event of an incident causing injury to a resident. On the following Monday, A.S. went to school, where the bite mark was noticed, and A.S. was seen and treated by a physician. The physician reported the abuse, and a DCF investigation was opened. At first, it was not clear how or when the bite was inflicted. Ms. Warren was contacted and fully cooperated. She discovered the bite incident entry in the home’s log, and the investigation was converted to an investigation of the Respondent. The DCF investigation was closed as substantiated for inadequate supervision by the Respondent (i.e., Ms. Warren) for two reasons: first, inadequate staffing; and, second, inadequate training of staff on what to do and how to report in the event of an incident causing injury to a resident. No findings were made against the employee on duty at the time of the bite incident because she had not been trained adequately, which was the responsibility of the Respondent (i.e., Ms. Warren). In response to the incident, Ms. Warren expressed her intention to ensure proper staffing and to train staff on the policy of zero tolerance of abuse, including what to do and how to report in the event of an incident causing injury to a resident. On follow-up by APD on December 27, 2017, it was determined that staffing was correct, the required zero tolerance training had been delivered, and there were “no other concerns at this time.” Count III In December 2017, APD conducted an annual licensing survey of the Respondent’s group home. It was determined that there was a broken window in one of the bedrooms. The Respondent had the window fixed before the follow-up inspection in January 2018. Shortly before (perhaps the night before or morning of) the re-inspection, a resident broke the window again, punching it completely out this time. When the inspector arrived, the bedroom was cold (well below 68 degrees Fahrenheit), as the temperature had gone down into the 30s overnight. Ms. Warren promptly had the window fixed again. The Respondent did all that could reasonably be expected under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that APD enter a final order dismissing Counts I and III, finding the Respondent guilty under Count II, and fining the Respondent $1,000. DONE AND ENTERED this 20th day of August, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 20th day of August, 2018.
The Issue The issues are whether Respondent failed to maintain a record of major incidents on two occasions, and if so, what penalty should be imposed.
Findings Of Fact Petitioner regulates assisted living facilities (ALFs) pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. Respondent is licensed as an ALF pursuant to Chapter 400, Part III, Florida Statutes, and Rule 58A-5, Florida Administrative Code. On or about October 4, 1999, Petitioner received a telephone call alleging that Respondent was operating contrary to Rule 58A-5, Florida Administrative Code, in several respects. In response to the telephone complaint, Petitioner performed an unannounced inspection/survey at Respondent's facility on October 6, 1999. Petitioner performed record reviews, interviews, and observations during its October 6, 1999, inspection of Respondent's facility. The survey revealed that Respondent's business was deficient in several respects that are not relevant here. These deficiencies resulted in four citations. On November 10, 1999, Petitioner completed a follow-up appraisal/complaint investigation at Respondent's facility. During the survey, Petitioner reviewed randomly selected medical records of eight of Respondent's clients. The November 10, 1999, revisit resulted in Respondent being cited for several Class III deficiencies. The deficiencies included one citation for failing to maintain a record of a major incident involving an injury to a resident who required treatment by a health care provider. Specifically, Resident No. 5 fell on October 22, 1999, and fractured a leg. She was transferred and admitted to the hospital. At the time of the November 10, 1999, inspection, Respondent could not produce documentation indicating that it had completed a major incident report. Petitioner advised Respondent that it had until November 24, 1999, to correct cited deficiencies. On December 20, 1999, Petitioner conducted a revisit survey of Respondent's facility. The purpose of the inspection was to determine whether Respondent had corrected deficiencies cited during the November 10, 1999, inspection. This inspection included a review of medical records for eight randomly chosen residents. The December 20, 1999, survey revealed a repeat deficiency for failing to complete a major incident report of an injury to a resident who required treatment by a health care provider. Petitioner cited Respondent for failing to complete a major incident report for Resident No. 7 who fell on or about August 1, 1999. Resident No. 7 fell in her room but refused initially to go to the hospital. Two days later, Resident No. 7 was admitted to the hospital for observation due to her complaints of pelvic pain. She returned to Respondent's facility with a new health assessment dated August 3, 1999. The new health assessment revealed a decline in the resident's ability to perform daily living activities and changed her status from independent to requiring supervision in dressing, grooming, toileting, and transferring. Respondent did not complete a major incident report at the time of the resident's fall or upon her admission to and return from the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $300 for repeated violations of Rules 58A-5.0131 and 58A-5.024, Florida Administrative Code, plus interest as specified in Section 400.419(6), Florida Statutes. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 2nd day of May, 2000. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3408D Tallahassee, Florida 32308 Mohamad Mikhchi Owner/President Northpointe Retirement Community 5100 Northpointe Parkway Pensacola, Florida 32514 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
The Issue The issue in this case is whether the license to provide assisted living facility services and operate an assisted living facility of Respondent, Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, should be revoked based upon the allegations of an Administrative Complaint entered by Petitioner on or about October 2, 1998.
Findings Of Fact The Parties. Petitioner, the Agency for Health Care Administration (hereinafter referred to as "AHCA"), is an agency of the State of Florida. AHCA is charged with the responsibility for, among other things, evaluating assisted living facilities in the State of Florida. Part III of Chapter 400, Florida Statutes (1997). Respondent, Gloria Raulerson, d/b/a Country Sunshine Retirement Home, is licensed to operate an assisted living facility. Country Sunshine Retirement Home (hereinafter referred to as the "Country Sunshine"), is located at 6119 Peeples Lane, Jacksonville, Florida. Ms. Raulerson's current license was effective for the period January 25, 1997, through January 24, 1999. No application for renewal of the license has been filed by Ms. Raulerson. AHCA's Initial Survey. On April 21, 1998, AHCA staff conducted an appraisal visit of Country Sunshine (hereinafter referred to as the "Initial Survey"). Following the conclusion of the Initial Survey, AHCA issued a survey report (hereinafter referred to as the "Initial Report") in which it concluded that Country Sunshine had committed a number of violations of regulatory standards. A copy of the Initial Report was provided to Ms. Raulerson on or about April 19, 1998. During the Initial Survey AHCA found 12 class II violations, approximately 56 class III violations, and two unclassified violations. The exact number of class III violations was not proved. The Administrative Complaint alleges a total of 77 violations. The testimony at hearing was that there were 69 violations. Based upon Exhibit 1, there was a total of 70 violations, 12 of which were class II violations and two of which were unclassified; but the exhibit is missing pages 88 and 89. The violations found by AHCA during the Initial Visit "range from general licensure standards, from things having to do with paperwork; to lack of staff training; to lack of financial stability; to nutrition/dietary standards; to violations with medication standards; violations of resident care standards; violations of housekeeping, maintenance, and physical plant standards; and then resident and staff records." Page 9, lines 6-12, Transcript. The specific nature of the class III violations found during the Initial Survey is reported in the Initial Report, Petitioner's Exhibit 1. The specific nature of the class III violations described in Petitioner's Exhibit 1 is hereby incorporated into this Recommended Order by reference. AHCA's Moratorium. By letter dated April 22, 1998, AHCA informed Ms. Raulerson that a moratorium was being imposed on the admission of any new residents to Country Sunshine. Ms. Raulerson complied with the moratorium imposed on Country Sunshine. AHCA's Second Survey. AHCA staff returned to Country Sunshine on June 4, 1998, to determine if the violations found during the Initial Survey had been corrected (hereinafter referred to as the "Second Survey"). It was determined during the Second Survey that Country Sunshine had 29 of the same class III violations found during the Initial Survey. Country Sunshine also had 4 repeat class II violations, a repeat of the same 2 unclassified violations found during the Initial Survey, and 2 new class III violations. The violations found by AHCA during the Second Survey were described more particularly in a survey report (hereinafter referred to as the "Second Report"). A copy of the Second Report was provided to Ms. Raulerson on or about June 19, 1998. The cover letter that accompanied the Second Report informed Ms. Raulerson that further administrative action against her license, including revocation of her license, would be considered by AHCA. The specific nature of the class III violations found during the Second Survey are reported in the Second Report, Petitioner's Exhibit 3. The specific nature of the class III violations described in Petitioner's Exhibit 3 are hereby incorporated into this Recommended Order by reference. The evidence proved that the violations affected the health, safety, or welfare of residents of Country Sunshine. The Administrative Complaint. On October 2, 1998, AHCA issued an Administrative Complaint against Ms. Raulerson. The Administrative Complaint alleged that Ms. Raulerson's license should be revoked pursuant to Sections 400.414(2)(b), (e), (h), and (5), Florida Statutes (1997), the law in effect at the time the violations were committed. In particular, AHCA alleged in the Administrative Complaint that Country Sunshine had "committed five or more repeated or recurring or similar Class III violations which were identified by the Agency during the last biennial inspection, monitoring visit or complaint investigation, which, on the aggregate, affect the health, safety or welfare of facility residents." AHCA did not specifically allege in the Administrative Complaint that Ms. Raulerson's license should be revoked or disciplined due to any repeated or recurring class II or unclassified violations. AHCA alleged in the Administrative Complaint there were 34 repeated or recurring violations but actually listed 36 specific repeat or recurring violations. The evidence, however, failed to prove that one of those alleged violations, A-811, was a repeat or recurring violation. Two of the specific violations, A-612 and A-814, are unclassified violations and not class III violations. Finally, four of the violations, A-101, A-705, A- 807, and A-1001, are class II violations and not class III violations. AHCA did not rely in the Administrative Complaint upon the unclassified violations and/or the repeated class II violations, in addition to the repeated class III violations, to support its determination that Country Sunshine had violated Sections 400.414(2)(b) and (h), Florida Statutes (1997).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Agency for Health Care Administration revoking the license of Gloria Ann Raulerson, d/b/a Country Sunshine Retirement Home, to own and operate an assisted living facility in the State of Florida. DONE AND ENTERED this 19th day of April, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 COPIES FURNISHED: Gloria Raulerson 6119 Peeple Lane Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1999. Jacksonville, Florida 32219 Michael O. Mathis, Senior Attorney Agency for Health Care Administration Fort Knox Building 3 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether allegations in the Administrative Complaint dated September 21, 1992, constitute grounds for revoking or failure to renew the license of Alice White, d/b/a Miss Patty's Day Care Center.
Findings Of Fact Alice P. White is the owner/operator of Miss Patty's Day Care Center in Bradenton, Florida which is licensed for 30 children. This facility has been in operation for approximately 15 years. On August 14, 1992 an infant at this day care center was checked by Respondent and found to be not breathing. Respondent called 911 for emergency medical assistance and commenced CPR. Emergency medical support arrived shortly thereafter and took the infant to the hospital where it was pronounced dead. Sheriff's deputies investigated the incident immediately and questioned Respondent who was quite upset over the incident. Respondent initially told the deputy that the baby choked while she was feeding him in her arms. This was false which Respondent admitted after being informed a couple of days later that the medical examiner had concluded that the infant died from Sudden Infant Death Syndrome (SIDS). Factually, the eight month old infant had been put to bed in his crib shortly after noon with a bottle feeder for the nap. One of the attendants at the day care center was overseeing the infants in this room. She did not stay in the room every minute but periodically went in and out of the room. On August 14, 1992 Respondent returned from a trip to bring children back from a Bible study course and when she entered the area where the babies were sleeping she observed the aide in charge of these babies having some lunch. Respondent then went into the room with the babies and found the infant not breathing. The only charges in the Administrative Complaint regarding this incident is contained in paragraphs 5 and 8 of the Administrative Complaint. Paragraph 5 alleges the baby died and paragraph 8 alleges that Respondent had provided the sheriff's department with misinformation regarding the infant choking while she was feeding him and that this infant had been left alone for 30 minutes without supervision before being noticed by Respondent. No credible evidence to support the lack of adequate supervision of this infant before its death was presented. The discrepancies found during the quarterly inspections of the facility for the past 3 1/2 years were predominantly minor offenses such as inadequate record keeping, failure to document all staff had received prescribed training or innoculations, lack of current vehicle driver certificate, unsafe outdoor equipment, or minor food service violations, failure to provide employee background screening, inadequate staff to child ratio, inadequate bathroom supplies, and lack of immunization records. These are all classified as Class III violations as defined in Rule 10M-12.011(7)(c), Florida Administrative Code. All of the violations noted in paragraph 9 above were corrected within the prescribed time period and no Administrative Complaint was ever issued against Respondent prior to the instant Administrative Complaint. During the investigation at this day care center following the infant's death, and while the sheriff's deputies were on the scene questioning Respondent and her employees, three additional violations are noted in paragraph 7 of the Administrative Complaint. The first of these allege the center had 18 children in part of the facility with no staff present in the room. At the time this infraction occurred Respondent was out on the patio being interrogated by a deputy and another deputy had called the aide supervising the 18 children out of the room to question her. When Respondent returned inside the center and observed the aide being questioned by the deputy she sent another aide into the room with the 18 school age children. The second allegation was that there were 36 children in the facility although the center was licensed for only 30. Without attempting to justify the violation Respondent testified that this occurred a day or two before school started when the teachers had to be at school but the pupils did not. These excess children were children of teachers who requested Respondent to take them during the time these teachers had to be at school. As a favor to these mothers who had previously used her day care center Respondent temporarily exceeded her authorized number of children. The third violation resulted when Respondent left the children she was supervising to open the door to admit the HRS inspector who supervised the facility. While Respondent was opening the door to let the inspector into the facility the proper ratio of staff to child was not maintained. In response to the inspection reporting the lack of supervision of the 18 school age and excess children in the facility (Exhibit 20) Respondent prepared a list of the facility's weak points and steps initiated to correct them (Exhibit 23). On August 28, 1992 Respondent voluntarily closed her day care center pending the completion of all investigations (Exhibit 24). One witness who has used Respondent's facility for her children for some ten years or more ardently and emotionally supported the renewal of Respondent's license. In addition eight other letters from parents of children who used Respondent's facility voiced strong support for Respondent and expressed an earnest desire for her facility to reopen. Also another letter (Exhibit 26) signed by 19 additional parents strongly supported the renewal of Respondent's license. All of these people, with full knowledge of the unfortunate incident of August 14, 1992, expressed an intent to return their children to Respondent's facility as soon as it is reopened.
Recommendation It is RECOMMENDED that a final order be issued finding Alice P. White, d/b/a Miss Patty's Day Care Center, not guilty of all charges in the Administrative Complaint and that the license to resume operations be issued forthwith to Alice P. White d/b/a Miss Patty's Day Care Center. DONE AND ENTERED this 28th day of May, 1993, in Tallahassee, Florida. K. N. AYERS 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 28th day of May, 1993. APPENDIX Proposed findings submitted by Petitioner are accepted except as noted below. Those proposed findings neither noted below nor included in Hearing Officer's findings were deemed unnecessary to the conclusions reached: Rejected insofar as child not being supervised. See HO #6. See HO #11 and #12. Fifth sentence rejected insofar as it states child was without supervision for 30 minutes. Sixth sentence inconsistent with fifth sentence. Proposed findings submitted by Respondent are accepted. Those not included in Hearing Officer's findings were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Raymond Deckert, Esquire 4000 W. Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614 Donald B. Hadsock, Esquire 1806 Manatee Avenue West Bradenton, Florida 34205
The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of October, 1989.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. 3. In the Petition Rules "33-3.001, 33-3.006, 33-3.0025, 33-22.004(3)(A), 33-22.0012 Code 3, s. 3-12, 33-29 and 33-4.001, 33-4.002" and Internal Operating Procedure Number AG-91.51 were challenged. Most of the Challenged Rules are lengthy and deal with a number of subjects. The common thread of the Challenged Rules and IOP concerns the possession of contraband and punishment therefor. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. As an example, paragraph 2, State of the Case and Facts, provides the following: 2. That the (Respondents) Rules as 33-29 et. seq. 33- 3.006, 33-3.0025, 33-22.0012 Code 3, s 3-12 is [sic] invalid, arbitrary, capricious, vague, delegation to exceed, modify, contravenes, the specific provisions of laws [sic] implemented, citation required by 120.54(7), Florida Statutes and 944.09(1)(A). This paragraph is fairly typical of most of the Petition. Although it contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the actions of employees of the Respondent in punishing the Petitioner for having contraband in his possession. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rules and the IOP. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules or the IOP are unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rules and the IOP are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7190R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Legal Affairs, and the State Attorney of the Eighth Judicial Circuit, the Respondents in case number 91-7190R as Respondents and addresses his challenge to other rules, internal operating procedures and directives of the other named Respondents challenged in case number 91-7190R. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rules, the IOP or the other matters challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
Findings Of Fact Following an April, 1985 inspection of the ACLF known as Family Affairs, Respondent timely obtained certificates for its two employees viz. Elinore Kolligs and Kathy Cisterna showing them free from communicable diseases and presented these certificates at the follow up inspection to satisfy the cited deficiency. Those two employees were employed during the April, 1986 annual inspection which resulted in a repeat citation for the same alleged violation, i.e. no certification that the employees were free from communicable disease. There is no requirement that employees of an ACLF obtain certificates annually that they are free from communicable diseases. The fact that documentation had been provided to DHRS following the April, 1985 inspection that these same employees cited in 1986 were free from communicable diseases should have carried over to the 1986 inspection. Exhibit 3 lists three employees under ACLF 26, the third being Virginia Sumter who worked as a volunteer at the facility. Ms. Sumter was a former resident at the facility who had provided a certificate that she was free of communicable diseases when she entered as a resident. In this connection during the proceedings Respondent inquired of Petitioner's witness if non-paid volunteers required certificates showing them free from communicable diseases and the response was in the affirmative. When asked if this also applied to Boy or Girl Scouts who worked at the ACLF as volunteers no satisfactory answer was forthcoming. One of the two uncorrected violations listed in the Administrative Complaint dated March 19, 1987 is that Respondent had six residents when the facility was licensed for only five (ACLF 2). This violation was noted at the April 14 inspection and also at a follow up inspection on July 14, 1986. The house in which this facility is located is large and on a minimum square feet per resident basis can accommodate nine residents. On March 18, 1986, before the April, 1986 inspection, Respondent obtained zoning approval from the City of Clearwater to increase the capacity of the ACLF to seven persons (Exhibit 15). Respondent had also communicated with the ACLF Program Manager in Petitioner's Jacksonville office and had been assured that her application to increase the licensed capacity to six residents would be approved. By letter dated May 14, 1986, (Exhibit 10) Respondent was advised by Petitioner that at the time of the April 14, 1986 survey an appraisal for the application to increase licensed capacity from five to six was conducted and the facility met all standards related to the increase. By letter dated May 29, 1986, Petitioner acknowledged that notice of approval of the application to increase the licensed capacity had been received and a recommendation approving the increase had been forwarded to the Office of Licensure and Certification in Jacksonville, Florida (Exhibit 16). By letter dated July 21, 1986, Respondent was issued a new license authorizing six residents at the facility. During the survey conducted on April 14, 1986 the facility did not have a week's supply of non-perishable food on hand as required (ACLF 67) and this deficiency remained uncorrected at the follow up inspection on July 14, 1986. Respondent acknowledged that during that period Mrs. Kolligs' daughter was injured in an accident, that Mrs. Kolligs devoted much time to her daughter and authorized the cook to use the emergency supplies if necessary due to the curtailment of Mrs. Kolligs' shopping time. Subsequent to the July, 1986 re-inspection Mrs. Kolligs sold the facility and no longer operates this ACLF.
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 2-1.007, Florida Administrative Code and "[a]ny and (all) State Attorney memorandums, statements, policy, rules, directive, consistent to this practice" were challenged. The Challenged Rule deals with the issuance of Attorney General opinions. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. The confusion is also caused by the failure of the Petitioner to actually be challenging the Challenged Rule. Although the Petitioner contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the alleged failure of the State Attorney of the Eighth Judicial Circuit to take action against employees of the Department of Corrections and the failure of the Attorney General of the State of Florida to do anything about it. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule is unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7189R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Corrections, the Respondent in case number 91-7189R, as a Respondent and addresses his challenge to other rules, internal operating procedures and directives of the Department of Corrections. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule or the other materials challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
The Issue Whether Judy Limekiller (Respondent) committed the violation alleged in the Administrative Complaint dated August 30, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at all times material to this matter, the holder of a Florida real estate license, license number 3131887. At all times material to the allegations of this case Respondent was an active sales associate with Michael Saunders and Company. Respondent’s address of record is 1529 Pelican Point Drive, HA 205, Sarasota, Florida. In January 2012, Respondent was a sales associate handling a transaction with Regina Zahofnik (Ms. Zahofnik). Ms. Zahofnik was the seller of property located at 4527 MacEachen Boulevard, Sarasota, Florida. Respondent admits she signed Ms. Zahofnik’s name to a Cancellation of Contract and Release. Respondent did not have written authorization to sign for Ms. Zahofnik. Instead, she maintains Ms. Zahofnik gave her verbal authority to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Lynda Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. Respondent signed Ms. Kravitz’ name to a Seller’s Property Disclosure Statement. Ms. Kravitz did not authorize Respondent to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Cherryne Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. On or about February 10, 2012, Respondent signed Ms. Kravitz’ name to a Residential Contract for Sale and Purchase. Ms. Kravitz did not authorize Respondent to sign the document. In all situations, Respondent believed she was authorized to sign the documents. She claims either e-mail or text message gave her the go-ahead to sign documents so that they could be timely processed. In the case of Ms. Zahofnik, the “deal was dead” and could not close. Since the buyer elected to walk away from the purchase when the seller could not complete the transaction, Respondent maintains that no party was injured by the signing of the document and that by doing so the refund to the buyer was processed. In the case of the Kravitz sale, Respondent signed the property disclosure because she knew the property better than the sellers and an expedited completion of the paperwork was requested. Again, Respondent states Ms. Kravitz authorized the signature. And with regard to the signing of the contract, Respondent asserts that Ms. Kravitz was slow to return the contract and that she was getting pressure from the other Ms. Kravitz to get the paperwork completed. Eventually, both Kravitz daughters signed the contract. Respondent does not deny signing the contract. As a result of the allegations of this case, Michael Saunders and Company incurred expenses and lost commissions. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provision of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,500.00, and imposing a suspension of Respondent’s real estate license for a period of 30 days, with probation to follow for such period of time as the commission deems appropriate. DONE AND ENTERED this 21st day of June, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 21st day of June, 2013. COPIES FURNISHED: Susan Leigh Matchett, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 James P. Harwood, Esquire James Harwood, P.A. Suite 106 1277 North Semoran Boulevard Orlando, Florida 32807 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juana Watkins, Director Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801
