The Issue The central issue in this case is whether Petitioner is entitled to recover attorneys fees and costs.
Findings Of Fact Petitioner, B.R., is the sole proprietor of an adult congregate living facility known as Rona's Retirement Home located in Perrine, Dade County, Florida. Petitioner has a net worth less than two million dollars and employs one part-time worker at the six bed facility. At the time of hearing, Petitioner had four clients residing at the home for whom she provides room and board, snacks, and cleaning. Petitioner receives compensation from each at the rate of $575.00 per month. Petitioner hired her attorney of record and agreed to pay her $200.00 per hour to represent her in connection with the underlying case (DOAH case no. 92-1889C) and the present cause. Petitioner's attorney has been practicing since 1977 and has expended 38.4 hours representing Petitioner in these matters. Petitioner incurred $1,203.46 for costs in connection with Case no. 92- 1889C. The formal hearing in DOAH case no. 92-1889C was conducted by Hearing Officer Michael Parrish on December 15, 1992. During that formal hearing the Department presented testimony from one witness, the investigator, and offered one exhibit, the FPSS report at issue. The Petitioner testified at the formal hearing on her own behalf and presented the testimony of one lay witness and one expert witness, a physician. Two exhibits regarding care given to the alleged victim (S.T.) were introduced on behalf of Petitioner. Pertinent findings reached in DOAH case no. 92-1889C are: During the period of S.T.'s residence at Rona's Retirement Home, the Respondent was a caregiver for S.T. within the meaning of the definition at Section 415.102(4), Florida Statutes (1991). At the time of S.T.'s arrival at Rona's Retirement Home, his legs were swollen. S.T. had been transferred from the hospital to Rona's Retirement Home without any medical documentation or release papers. Upon inquiry by B.R., it was determined that S.T. was a diabetic. Arrangements were made by Rona's Retire- ment Home for a medical service to provide a nurse to administer insulin to S.T. on a daily basis. S.T. refused to allow the nurse to administer insulin to him during his stay at Rona's Retirement Home. S.T. was an uncooperative resident during his entire stay at Rona's Retirement Home. The retirement home specially prepared food for S.T. consistent with dietary guide- lines for diabetics. He refused to eat the specially prepared food and requested to be fed the same food as other residents. During his entire stay at Rona's Retirement Home, S.T. constantly made requests to go to the hospital. There was no medical basis for S.T.'s requests to go to the hospital. On August 29, 1991, Dr. Mark Caruso made his regular monthly visit to Rona's Retirement Home to examine the residents. On that day, Dr. Mark Caruso observed S.T. and asked B.R. if he should examine S.T. B.R. told Dr. Caruso that S.T. was a guardianship placement and that there was not, as yet, any approval by his guardian for any regular medical care. Dr. Caruso did not observe any indication that S.T. was in medical distress. On August 30, 1991, another resident at Rona's Retirement Home slipped and fell at the facility and an ambulance was called to transport that resident to the hospital. Upon arrival of the ambulance, S.T. asked one of the ambulance attendants to take him to the hospital. B.R. refused to allow S.T. to be taken to the hospital. As a result of a report of abuse or neglect, on the morning of August 30, 1991, Lourdes Paneda, a Protective Investigator with the Department of Health and Rehabilita- tive Services, visited Rona's Retirement Home where she interviewed S.T. At that time S.T. complained to Investigator Paneda of having chest pains. Investigator Paneda also observed that S.T. had swollen legs and that he seemed to be breathing heavily. Investigator Paneda was of the view that S.T. was suffering from medical distress, including the possibility of congestive heart failure. Accordingly, she contacted Dr. Mark Caruso and, following Investigator Paneda's description of her observations and concerns, Dr. Caruso said that if Investigator Paneda thought that S.T. was really sick, she should have him taken to Baptist Hospital. Investigator Paneda immediately called for rescue service. Shortly thereafter, the rescue service came and, for reasons not revealed in the record in this case, took S.T. to Deering Hospital. S.T. was seen and treated by emergency room physicians as soon as he got to the hospital. A few hours after his admis- sion to the hospital, S.T. was examined by Dr. Caruso. Based on his examination of S.T. and on the results of tests performed on S.T. at the hospital, Dr. Caruso was of the opinion that S.T. was not suffering from any acute medical distress. Dr. Caruso was also of the opinion that S.T. was not at any time in danger of death and that the conduct of B.R. did not place S.T. in danger of death or cause any harm to S.T. During the time S.T. was a resident at Rona's Retirement Home, B.R. exercised reasonable judgment in her care of S.T. All of her actions regarding the care of S.T. were reasonable. B.R. did not medically neglect S.T., nor did she neglect him in any other way. B.R. did not at any time put S.T. in any life-threatening situation. The final order entered by the Department adopted each of the foregoing findings without exception and accepted the Hearing Officer's recommendation that the FPSS report be classified as unfounded with the Petitioner's name being expunged from the registry. Petitioner was a prevailing party as defined in Section 57.111, Florida Statutes, in the underlying matter. The Respondent did not present any evidence in this cause to support allegations that an award of fees would be unjust or that the agency's actions were substantially justified. The Respondent presented no evidence. Moreover, the attorney representing the Department at the formal hearing in this case did not attend the hearing of nor investigate the Department's case in the underlying matter. No conflicting medical evidence was presented in the underlying case which required resolution. A reasonable attorney's fee for 38.4 hours in an administrative proceeding such as the instant case is $7,680.00.
The Issue The issue is whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is forty-three years old. His wife, Margaret Bryant, has applied for a license to operate a family day care home. In March 1987, a law enforcement officer detained Petitioner on suspicion of robbery, placed Petitioner in the backseat of a patrol car, and transported him to the police station. Petitioner was the last person to ride in the patrol car before the law enforcement officer found cocaine in a matchbox in the back seat of the patrol car. Subsequently, Petitioner was arrested and charged with robbery and possession of cocaine. In April 1987, Petitioner pled guilty to aggravated assault pursuant to Section 784.021, Florida Statutes, and possession of cocaine pursuant to Section 893.13, Florida Statutes. He was adjudicated guilty of a third-degree felony for aggravated assault and a second-degree felony for possession of cocaine. The court sentenced Petitioner to 24 days, time served. In January 1992, Petitioner was living with a former girlfriend, Gloria Sanderford. Petitioner and Ms. Sanderford had an argument over some marijuana. During the argument, Petitioner hit the wall then left the residence. When he returned to the residence, Petitioner broke a window in an attempt to gain entry. In February 1992, Petitioner was charged with assault pursuant to Section 784.011, Florida Statutes, and with criminal mischief pursuant to Section 806.13, Florida Statutes. After pleading no contest to these charges, Petitioner was adjudicated guilty of a second-degree misdemeanor on both counts. Petitioner was sentenced to 16 days, time served, and 90 days' probation. The court ordered Petitioner to make restitution to Ms. Sanderford in an amount not to exceed $250. During the hearing, Petitioner admitted that he was convicted of burglary in 1994. Petitioner testified that he was sentenced to three years in jail and was eventually released on parole. The record does not reflect any additional details about this conviction. In September 1996, Petitioner and a former girlfriend, Janet McClendon, fought over some money resulting in a bruised lip and eye for Ms. McClendon and a cut on Petitioner's wrist. Petitioner and Ms. McClendon were using drugs at the time of the incident. In October 1996, Petitioner pled no contest and was adjudicated guilty of a first-degree misdemeanor battery pursuant to Section 784.03, Florida Statutes. The court sentenced Petitioner to 45 days in jail with credit for 18 days, time served. Subsequently, Petitioner returned to jail for violation of parole. On August 8, 1998, Petitioner and Margaret Bryant were not married, but were living together; they had an argument during which Petitioner pushed her. Ms. Bryant called the police resulting in Petitioner's arrest for battery pursuant to Section 784.03(1), Florida Statutes. On August 28, 1998, the court adjudicated Petitioner guilty of a first-degree misdemeanor battery for violating Section 784.03(1), Florida Statutes. Based on this conviction, the court sentenced Petitioner to five months' incarceration with credit for 21 days, time served. The court also ordered Petitioner to complete the Door Program and to participate in family counseling. After Petitioner was released from jail the last time, he began attending church. Petitioner continues to be active in his church, serving as the camera person and participating in the on-going family enrichment and marriage counseling program. Petitioner's pastor considers Petitioner to be a church leader, a loving husband, and devoted stepfather to Ms. Bryant's two children. The pastor's opinion of Petitioner is supported by many of the church members. Petitioner's mother confirms that Petitioner has turned his life around since he stopped abusing drugs and alcohol, and he often helps his mother with household chores. According to Petitioner's mother, Petitioner is a good husband and father to his stepchildren and his goddaughter. Ms. Bryant and Petitioner have been married for almost three years, but they have lived together for several years longer. She testified that Petitioner is a loving husband and stepfather. She asserts that as a couple, they have learned how to deal with the challenges of married life. According to Ms. Bryant, she and Petitioner now have the skills to keep their marriage healthy. Petitioner has a general education diploma and is an electrician by trade. He worked for one electric company for about 14 years; he has been employed as an electrician with his current employer for over two years. Petitioner's employer regards him as a hard worker who is trusted with jobsite responsibilities and recommends Petitioner as a person of character. Petitioner admits that his drug and alcohol abuse caused him problems in the past, and he does not deny his criminal history. However, Petitioner stopped using drugs and alcohol after his last incarceration in August 1998. He now has a strong marriage to Ms. Bryant and a commitment to his church and has accepted the responsibility for helping Ms. Bryant raise her children. Petitioner serves as a mentor for other young children. Petitioner's church and family provide him with a solid support system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioner an exemption from disqualification. DONE AND ENTERED this 18th day of April, 2002, 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 18th day of April, 2002. COPIES FURNISHED: Anthony Bryant 960 Ontario Street Jacksonville, Florida 32254 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issues presented for decision herein are whether or not Petitioner's application for re-licensure as an Adult Congregate Living Facilities (ACLF), should be approved.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Ida Belle Hill Retirement Home and Ida Belle Hill Boarding Home are adult congregate living facilities (ACLF), located at 5218 and 5512 Mayo Street, Hollywood, Florida. Adult facilities are licensed by Respondent. The licenses on both facilities expired November 19, 1985, and by letter dated November 25, 1985, the applications for re-licensure were denied. Annual surveys were made of the facilities by Respondent's inspector for the Office of Licensure and Certification, Phillip Drabick. Drabick's first inspection of the facilities was on July 29, 1985, with a follow-up visit on November 5, 1985. The parties stipulated that Petitioner's application for re-licensure as an ACLF was timely made and accepted by the Respondent and that a primie facie case had been established by Petitioner as relates to the application for re-licensure. (TR 12). Based on that stipulation, Respondent has an aversion of proving that Petitioner is not entitled to re-licensure as an ACLF. The parties stipulated that both cases should be consolidated for hearing. Petitioner stipulated that the conditions and deficiencies noted by Respondent, Office of Licensure and Certification, on March 5, 1985, were extant and did exist at that time. (TR 54). Petitioner was made aware of all deficiencies at the times they were observed by Respondent. During those inspections, the following conditions were found and brought to Respondent's attention on both facilities as follows: The facility owner, Ida Belle Hill, served as representative payee and has not filed a surety bond with the Department (HRS) in an amount equal to twice the average monthly aggregate income of personal funds due residents. (TR 61-63, 75). The facility does not keep complete and accurate records of personal funds of residents. (TR 63, 64, 75 and 77). The facility does not maintain a current admissions and discharge record of all residents, including temporary emergency placement. (TR 35, 37 and 60). Up to date the other records that were not kept on file for residents who received supervision of self-administered medications. (TR 64, 65 and 78). Services delivered by third party contractors, such as doctors, dentists and other health care professionals are not documented and placed in each resident's medical records. (TR 65, 78). The facility does not maintain a record of personnel policies including employment policies and work assignments for each position. (TR 63- 66, 67 and 78). The facility does not maintain a written work schedule for employees including provision for relief staff and coverage for vacations, sick leave and other emergencies. (TR 66, 78). The facility does not maintain time sheets for employees. (TR 67, 79). The facility does not have one staff member within the facility at all times who has certification in an approved first aid course. (TR 66, 67, 68, 79 and 80). The facility does not have job descriptions for staff who are responsible for providing personal care to residents. (TR 69, 80). The facility does not maintain the required medical form for residents admitted from other state institutions such as South Florida State Hospital. (TR 69, 80). The facilities house residents that have not been examined by a licensed physician or licensed nurse practitioner within sixty days before admission or within thirty days following admissions. Additionally, the facility does not maintain a completed, signed health assessment for ACLF facilities and the resident's files for each resident. (TR 60, 61, 80 and 81). The facility does not maintain written policies, procedures for assisting residents in making appointments to appropriate medical, dental, nursing or mental health services as is necessary for the care of its residents and for providing all transportation to and from the centers which provide the provision of the required services. (TR 69, 70, 80 and 81). THE FOLLOWING DEFICIENCIES WERE FOUND TO EXIST AND WERE BROUGHT TO PETITIONER'S ATTENTION AS RELATES TO IDA BELLE HILL BOARDING HOME. The facility does not have food service policies and procedures for providing proper nutritional care for residents whether provided by the facility or a third party. (TR 70). Dietary allowances are not met by offering a variety of foods adapted to food habits, preference and physical abilities of residents and prepared by the use of standardized recipes. (TR 70, 71). The facility does not maintain an up to date diet manual, approved by HRS, to use as a standard reference in planning regular and therapeutic diets. (TR 71). Menus are not corrected as served and maintained on file for the required six months. (TR 71, 72). The facility does not maintain, at the premises, a one week supply of non-perishable food based on the number of weekly meals that the facility has contracted to serve. (TR 72).
Recommendation Based on the foregoing findings of fact and conclusions of law including the fact that the violations noted herein are numerous and continuing over an extended period of time, notwithstanding efforts by Respondent to gain compliance by Petitioner, finds that Respondent has not established compliance with Chapter 400, Part 2, Florida Statutes, respecting the entitlement to re- licensure as adult congregate living facilities. Based thereon, it is RECOMMENDED: That a Final Order be entered herein by the Department of Health and Rehabilitative Services, Office of Licensure and Certification, denying Petitioner's application for re-licensure as an adult congregate living facilities for Ida Belle Hill Boarding Home and Ida Belle Retirement Home situated at 5512 and 5218 Mayo Street, Hollywood, Florida, 33021. Recommended this 21st day of October, 1986, in Tallahassee, Florida. 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 21st day of October, 1986.
The Issue Whether Petitioner is entitled to attorneys' fees and costs and, if so, in what amount.
Findings Of Fact On or about April 29, 1993, the Department of Health and Rehabilitative Services issued an agency action letter which rejected certain of Petitioner's cost reports in calculating the Medicaid reimbursement to which Petitioner was entitled. As a result, the Medicaid reimbursement to Petitioner was reduced. Thereafter, Petitioner timely filed a challenge to the agency action, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings, DOAH Case No. 93-3687. Such case was assigned to Judge Arrington and scheduled for hearing in Miami for October 14-15, 1993. On October 12, 1993, the Department filed a suggestion of mootness which led to the withdrawal of the agency action letter, the acceptance of Petitioner's cost reports, and, presumably, to the recalculation of the Medicaid reimbursement favorable to Petitioner. On May 2, 1996, the agency, now the Agency for Health Care Administration, entered a final order adopting the recommended order. On July 1, 1996, the Petitioner filed the instant motion for attorney's fees and costs and supporting memorandum of law together with the exhibits thereto. On or about September 6, 1996, Respondent filed a motion to dismiss or alternatively motion to strike Petitioner's motion for attorney's fees and costs, and argued that the Petitioner is not entitled to fees pursuant to Section 57.105, Florida Statutes; that the affidavit submitted by Petitioner does not comply with the statute; that Petitioner is not a prevailing party under Section 57.111, Florida Statutes; and that the relief requested exceeds the maximum award of $15,000.00. Such responses relate only to the initial pleading filed, however, and not to the amended request filed on February 12, 1997. Petitioner has a net worth of not more than $2,000,000.00 and its principal place of business is Dade County, Florida. Petitioner's attorney's normal billing rate for general matters is $250.00 and he expended in excess of 100 hours of time in the litigation of the underlying matter. Petitioner has requested $87,500.00 in attorney's fees as the prevailing party in the principal case and $21,875 for litigation on the issue of fees and costs. Petitioner alleged it is entitled to fees and costs pursuant to Sections 57.105 and 57.111, Florida Statutes.
The Issue The ultimate issue for determination in this proceeding is whether Respondent is entitled to fees and cost pursuant to the Florida Equal Access to Justice Act promulgated in Section 57.111, Florida Statutes.
Findings Of Fact Petitioner seeks reimbursement of fees and costs paid to defend an administrative proceeding conducted by former Hearing Officer Jane Hayman in Case Number 89-3883, Division of Administrative Hearings (the "Division"). Respondent sought fines against Kehoe on the Bay, a licensed Adult Congregate Living Facility, for four alleged deficiencies determined to have existed during a follow up visit to an annual survey of the facility. The four allegations of deficiencies were: (a) one smoke detector did not work; (b) the facility had failed to document that the fire alarm system had been tested; (c) the facility failed to document that the smoke detectors had been tested; and (d) seven doors did not close properly in violation of fire safety requirements. At the outset of the formal hearing, Respondent voluntarily dismissed the allegation concerning the faulty smoke detector and proceeded on the remaining three allegations. Respondent prevailed in the Final Order with respect to two of the three allegations at issue. The Final Order reversed findings of fact in the Recommended Order with respect to two of the allegations. The Final Order found that the facility had failed to document that the smoke detectors had been tested, and that seven of the doors did not close properly. The Final Order sustained the findings in the Recommended Order that the facility had documented the testing of the fire alarm system. No penalty was imposed in the Final Order due to mitigating circumstances proved at the formal hearing. Petitioner did not appeal the Final Order, and the time for seeking judicial review of the Final Order has expired. Petitioner's fees and costs are not allocated or apportioned among the four original allegations in Case Number 89-3883. The affidavit of counsel for Petitioner contains 39 entries for fees and costs totalling $4,729.49. Additional fees in the amount of $705 and costs in the amount of $225 were incurred by Petitioner through the date of the formal hearing in this proceeding. The total amount of fees and costs stipulated to by the parties is $5,002.50. There is no evidence, however, of what proportion of those fees and costs are attributable to either the single allegation in Case Number 89-3883 with respect to which Petitioner prevailed or the allegation voluntarily dismissed by Respondent. Petitioner has 30 employees at all the five facilities owned and operated by Petitioner in Florida. Petitioner owns and operates five facilities. Two are Dade County facilities, two are Department of Health and Rehabilitative Services facilities, and one is a veteran's administration facility. Petitioner has reported no profit on his facilities for seven years. The administrative proceeding brought by Respondent in Case Number 89- 3883 had a reasonable basis in law and fact at the time it was initiated by Respondent. That proceeding was based upon an annual survey and follow up visit conducted by one of Respondent's inspectors in the ordinary course of business, and the credibility assessment of the testimony of Respondent's inspector. Respondent's inspector had been inspecting similar facilities since 1986. Prior to that, the inspector inspected homes for the elderly in New York for approximately 23 years. The assessment of the inspector's testimony regarding the results of the annual survey and follow up visit was not so unclear that no general counsel would have prosecuted the case, and it was not unreasonable for Respondent to do so.
Findings Of Fact For the purposes of the motion, the parties stipulated to the following facts: The Department's action giving rise to Petitioners' petition for attorney's fees under Section 57.111, Florida Statutes, was to propose confirm a report of abuse/neglect against each of the five Petitioners in their individual capacity. Each Petitioner requested a formal hearing under Section 120.57(1), Florida Statutes, which resulted in five separate cases, none of which named Palmetto Guest Home, Inc. as a party. The five cases were consolidated but were subsequently dismissed as a result of the Department downgrading each case to "closed without classification". All five of the Petitioners worked at the Palmetto Guest Home, Inc. and are related to each other. The Palmetto Guest Home, Inc., is a Florida corporation in good standing and registered with the State of Florida as an adult congregate living facility. James E. Biggins is the president and a director of Palmetto Guest Home, Inc., and is the corporation's sole shareholder. Palmetto Guest Home, Inc., was not named as a party in the underlying administrative action and is not one of the Petitioners in this case. James E. Biggins was not named as an alleged perpetrator in the underlying administrative action and is not one of the Petitioners in this case. James E. Biggins is the father of Petitioners, K.B., J.J.B. and M.B., who are vice presidents of the corporation. James E. Biggins is the husband of Petitioner S.B., who is a director and the secretary/treasurer of the corporation. James E. Biggins is the father-in-law of Petitioner T.B., who is the administrator of Palmetto Guest Home, Inc. Palmetto Guest Home, Inc. has net a worth of less than two million dollars.
