The Issue The primary issue in this case is whether Respondent, a licensed group home operator, violated several statutes and rules governing such homes and their staffs, with most of the alleged offenses occurring, Petitioner charges, in connection with the accidental death of a resident. If Respondent is found guilty of any disciplinable offenses, then it will be necessary to determine the appropriate penalties for such violation(s).
Findings Of Fact At all times relevant to this action, Respondent Daniel Madistin LLC #1 ("DM1") held a Certificate of License, numbered 091867, which authorized DM1 to operate a group home for the developmentally disabled in West Palm Beach, Florida, for the one-year period from April 1, 2014, through March 31, 2015. DM1 had been licensed as a group home since 2009. DM1's facility (the "Home") could house up to six residents at a time. As a group home licensee, DM1 falls under the regulatory jurisdiction of Petitioner Agency for Persons with Disabilities ("APD"), which issued DM1's initial and annual renewal licenses and periodically inspected the Home. One of the Home's longtime residents was a young man named V.H.-D. This wheelchair-bound, nonverbal resident suffered from a number of medical conditions, including severe cerebral palsy, as a result of which he was unable to care for himself. The Home's staff, therefore, were required, among other things, to feed V.H.-D., whose difficulty swallowing solid foods had caused him to be placed, on doctor's orders, on a diet of puree as a precaution against choking. (V.H.-D.'s family had refused to consent to the placement of a feeding tube.) On the morning of Sunday, October 19, 2014, an employee of DM1, Pharah Murat, fed V.H.-D. his breakfast, as she had done many times since starting to work in the Home in June of 2014. Because V.H.-D. could not talk, he generally manifested satiety by regurgitating food and expelling it from his mouth, at which point the caregiver would clean him up. So, this day, when V.H.-D. began expelling food, Ms. Murat stopped feeding him and wiped his mouth, per the routine. The situation was not routine, however, as Ms. Murat soon realized. V.H.-D. became pale and nonresponsive and looked unwell. Concerned, Ms. Murat immediately called her supervisor, Daniel Madistin, the eponymous principal of DM1. Upon hearing Ms. Murat's description of V.H.-D.'s condition, Mr. Madistin, who was at church with his wife, ended the call and promptly dialed 911. Having thus summoned emergency medical services and law enforcement, Mr. Madistin rushed to the Home. Meantime, Ms. Murat and a fellow employee, Marie Cadet, attended to V.H.-D. as they awaited the arrival of the paramedics. The evidence, which is in conflict, persuades the undersigned to find that, more likely than not, Ms. Murat placed V.H.-D. on the floor and performed cardiopulmonary resuscitation, or tried to, although to what avail cannot be determined. Afterwards, she and Ms. Cadet returned V.H.-D. to his wheelchair and moved him from the dining room to the front door, so that the paramedics would be able to work on him without delay once they appeared, which they did within a matter of minutes. V.H.-D. was removed from the Home and taken by ambulance to the hospital, where he died from asphyxiation due to pulmonary aspiration of food secondary to cerebral palsy. APD contends that V.H.-D. was the victim of "neglect" because (a) Ms. Murat called Mr. Madistin, instead of 911, and (b) the staff failed to (i) recognize that V.H.-D was choking and (ii) handle an emergency situation promptly and intelligently. While there is no dispute that Ms. Murat called Mr. Madistin, there is no debate that she did so immediately upon realizing that V.H.-D. might be in distress, which she observed very quickly. The evidence does not establish whether or not Ms. Murat realized that V.H.-D. was choking, but it does clearly prove that she not only realized something was wrong, but also acted upon that recognition without delay. APD insinuates that by not calling 911 first, Ms. Murat increased the response time of the EMTs, to the detriment of V.H.-D. There is, however, no persuasive evidence that Ms. Murat's actions decreased the likelihood of V.H.-D.'s survival, nor is that a reasonable inference. To the contrary, it is more reasonable to infer, although not necessary to find, that Ms. Murat expedited the delivery of emergency medical services because she could converse in her primary language with Mr. Madistin, whose first language, too, is Creole, enabling the latter, who is fluent in English, to relay the relevant information efficiently to the 911 dispatcher. In addition, it should be mentioned that DM1's policy directed employees to call 911 in an emergency. So, even if Ms. Murat's failure to call 911 first amounted to neglect in this instance, which it did not, there is no basis in the evidence for holding the licensee responsible, for there is no evidence suggesting that DM1 knew or should have known that Ms. Murat would act as she did in a crisis. In any event, the evidence shows, and the undersigned finds, that Ms. Murat and Ms. Cadet acted with reasonable skill and efficiency in this emergency. In making this finding, the undersigned is mindful that direct care staff are not medical providers. Indeed, at the time DM1 hired Ms. Murat, a caregiver needed only an eighth-grade education to meet the minimum academic requirements,1/ and even under the current rule a high school diploma or its equivalent suffices.2/ The point is that it is unreasonable to expect a direct service provider in a group home, when responding to a medical emergency, to meet the standard of care applicable to a doctor, nurse, or EMT. No persuasive evidence in the instant record establishes the appropriate standard of care for direct service providers, but the undersigned is nevertheless able to determine, based on the totality of the circumstances, that the performance of DM1's staff, while probably falling short of heroic, was at least reasonable, and certainly not neglectful. After the EMTs had left for the hospital, Palm Beach County Sheriff's Office ("PBSO") deputies stayed behind at the Home to investigate. One of the officers tried to interview Ms. Murat, but she was reluctant to speak. Ms. Murat and Ms. Cadet are Haitian immigrants whose native tongue is Creole, and once the officers realized this, they called for the assistance of Deputy Vessage, a bilingual PBSO deputy who often serves as a translator in such instances. Deputy Vassage responded to this request and questioned the women in Creole, without incident. APD has alleged that Ms. Murat and Ms. Cadet were not fluent speakers of English and thus were incapable of communicating effectively in the official language of the state of Florida.3/ This allegation was not proved. That Ms. Murat insisted upon using her primary language when speaking with law enforcement officers, who were investigating a fatal event that had just recently occurred in her presence, shows good judgment, not a lack of communication skills. At any rate, the evidence persuades the undersigned to find that both women likely were able to speak English with sufficient proficiency to make themselves understood in ordinary circumstances. More important, however, as will be discussed below, the law does not require that direct service providers such as Ms. Murat and Ms. Cadet be capable of communicating effectively in English, but rather that they be capable of communicating effectively. Needless to say, speaking in English is not the only way to communicate effectively; nor, for that matter, is talking necessary for effective communication. APD investigated the circumstances surrounding the death of V.H.-D., and in so doing reviewed DM1's business records, including the personnel file for Ms. Murat. APD claims that DM1 failed to maintain written evidence of Ms. Murat's qualifications as required by Florida Administrative Code Rule 65G-2.012(5)(b)(1978). This rule was substantially amended in 2014, however, and the recordkeeping requirement was repealed, effective July 1, 2014. See Fla. Admin. Code R. 65G- 2.012 (2014). There is no persuasive evidence in this record to support a finding that DM1 failed to comply with the former version of rule 65G-2.012 while it was in effect.4/ It is undisputed that DM1 did not terminate Ms. Murat's employment, or otherwise discipline her, as a result of V.H.-D.'s death. On January 16, 2015, an APD employee named Sabah Bissainthe made an unscheduled visit to the Home to conduct an inspection. Upon her arrival, she encountered Sinclair Concin, who worked for DM1. Mr. Concin, who was not expecting visitors, called Mrs. Naomi Madistin for guidance when he realized that Ms. Bissainthe was a state employee performing official business. Mr. Concin put Ms. Bissainthe on the phone with Mrs. Madistin, and the two made arrangements for Mrs. Madistin to meet Ms. Bissainthe at the Home as soon as Mrs. Madistin could get there, which she did within an hour. Mrs. Madistin cooperated fully with Ms. Bissainthe. Ms. Bissainthe was not refused entry to the Home or forbidden from inspecting any part of the facility, contrary to APD's allegations. Mr. Concin's primary language is Creole, which Ms. Bissainthe does not speak. APD alleged that Mr. Concin does not speak English, but the evidence fails to prove that charge, which would not, at any rate, be a disciplinable offense, without more. APD further asserted that Mr. Concin is unable to communicate effectively because he did not converse in English with Ms. Bissainthe. The evidence shows, however, that Mr. Concin and Ms. Bissainthe did communicate effectively, notwithstanding that each spoke a different primary language, because Mr. Concin proved capable, in fact, of accomplishing the task when the circumstances required that he accommodate an APD investigator who had appeared unannounced at the doorstep of the Home. On February 18, 2015, an investigator from the Attorney General's office, Paul Valerio, paid an unannounced visit to the Home in connection with a matter unrelated to V.H.-D.'s death. Neither Mr. nor Mrs. Madistin was on-site at the time, so Mr. Valerio called Mr. Madistin to let him know that an official investigation was under way. The two men agreed that Mr. Valerio would meet with Mrs. Madistin at the Home the next day, and that meeting took place as planned. Mrs. Madistin fully cooperated with Mr. Valerio, who completed his investigation without difficulty. The evidence does not establish that Mr. or Mrs. Madistin was unavailable or uncooperative, as APD charged. Ultimate Factual Determinations Neither Ms. Murat nor Ms. Cadet abused, neglected, exploited, or harmed V.H.-D., who received prompt and appropriate medical treatment on the day he died. Moreover, Ms. Murat and Ms. Cadet were mentally competent to perform their duties as direct service providers. The evidence, therefore, does not establish the violations of sections 393.13(3)(a), 393.13(3)(g), and 393.13(4)(c), Florida Statutes; and Florida Administrative Code Rules 65G-2.008(1)(h) and 65G-2.009(1)(d) set forth in Count I of the Administrative Complaint. The evidence failed to establish that Ms. Murat and Ms. Cadet, or either of them, were (i) incapable of demonstrating effective communication or (ii) not mentally competent to perform their jobs as direct service providers. Thus, the violations of rules 65G-2.008(1)(g) and 65G- 2.008(1)(h) alleged in Count II were not proved. The charges brought in Count III of the Administrative Complaint are duplicative of the charges set forth in Count I and fail for the same reasons of fact. The charges in Count IV are based on allegations that DM1 failed to maintain adequate personnel records for Ms. Murat, in violation of outdated provisions Florida Administrative Code Rule 65G-2.012(5)(1978), which expired on July 1, 2014, when a new version of the rule took effect. The evidence failed to show that DM1 violated the former rule at any time during its existence. The charges brought in Count V of the Administrative Complaint are duplicative of the charges set forth in Count II and fail for the same reasons of fact. The allegations of Count VI largely overlap those of Counts I and III, with the additional allegation that DM1 failed to fire Ms. Murat or suspend her employment. While it is true that Ms. Murat was not punished as a result of V.H.-D.'s death, DM1's decision not to take such action does not constitute a disciplinable offense, and the remaining allegations of Count VI fail for the same reasons of fact that doom the charges set forth in Count I. The charges in Count VII are based on allegations that Sinclair Concin (i) was unable to communicate effectively with Sabah Bissainthe and (ii) refused to allow Ms. Bissainthe to enter the Home to conduct an investigation, thereby putting DM1 in violation of rules 65G-2.008(1)(g), 65G-2.008(1)(h), and 65G- 2.0032(3). The evidence showed, however, that Mr. Concin did communicate effectively with Ms. Bissainthe, and that he let her into the Home. Therefore, the charges were not proved. In Count VIII, APD charged DM1 with failure to have a facility operator (manager) on-site or on call at all times, in violation of rule 65G-2.012(1)(a). This charge was based on the allegation that when investigator Paul Valerio arrived at the Home for an unscheduled visit, neither Mr. Madistin nor his wife was in the residence. Mr. Valerio was able immediately to reach Mr. Madistin by phone, however, and make plans to meet with Mrs. Madistin the following day. Thus, the charge set forth in Count VIII was not proved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order finding that Daniel Madistin LLC #1 is not guilty of the offenses charged in the Amended Administrative Complaint. DONE AND ENTERED this 25th day of November, 2015, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 25th day of November, 2015.
The Issue Whether or not the penalty of $1,000 for operating a commercial vehicle in excess of the length allowed by permit assessed Dan Ingram Mobile Home Transport, Inc. by the Department of Transportation was correct pursuant to Section 316.550 F.S.
Findings Of Fact The Florida Department of Transportation (DOT) issued permit 066715 to Respondent Dan Ingram Mobile Home Transport on April 4, 1990, to cover the period May 1, 1990 through April 30, 1991, to allow Respondent to travel over state highways with loads of an overall length of 85 feet. "Length" as specified on such on permits means the overall length of the power unit and trailer as defined in the "Guide for Issuance of Oversize and Overweight Hauling Permits," which has been adopted by reference in Rule 14-26.012(1) F.A.C. On March 26, 1991, Respondent was transporting a mobile home and stopped at the Ellaville weight station on Interstate Highway 10. The DOT inspector checked the permit and measured the Respondent's power unit and trailer, which measured 96 feet on a tape measure laid bumper to bumper. Safety violation 022741 was issued against Respondent for operating its equipment 11 feet over length in violation of permit 066715. Accordingly, the DOT assessed a penalty of $200 for each foot over the 85 feet permitted, up to a maximum fine of $1,000 against Respondent. Issuance of the safety violation/fine assessment was in accord with Section 316.550 F.S. as amended effective October 1, 1990. The law as amended authorized inspectors at weight stations to issue violations for permit infractions. It was put into effect by the DOT during February 1991 to allow time for training of departmental personnel and education of the public. Previously, only certified law enforcement officers were authorized to issue such violations. The DOT set the fine by reference to its Secretary's "Directive Establishing Fines for Operation of a Vehicle Without a Permit or in Violation of a Permit 775-070-001-A," issued for employees' use from October 1, 1990 to April 1, 1991, inclusive. Reference to that directive would have allowed a penalty of $200 a foot up to $1,000. Although there is no evidence that this written directive or policy was ever codified in a formal rule pursuant to Section 120.56 F.S., there is evidence that it was uniformly applied by DOT personnel during the time frame when the instant violation/fine occurred, and it is also clear that in its application thereof in the instant case, the agency did not invoke a fine in excess of the permissible statutory $1,000 cap.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order finding that the penalty/fine of $1,000 was correctly assessed Dan Ingram Mobile Home Transport, Inc. under the provisions of Section 316.550 F.S. DONE and ENTERED this 18th day of September 1991 at Tallahassee, Florida. ELLA JANE P. 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 18th day of September 1991. APPENDIX The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-2 Except for mere legal argument, accepted. Respondent's PFOF: None filed. COPIES FURNISHED: Vernon L. Whittier Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ms. Shirley Ingram Dan Ingram Mobile Home Transport, Inc. Post Office box 1721 Jena, LA 71342 Ben G. Watts, Secretary Attention: Eleanor F. Turner Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458
Recommendation It is recommended that a final order be entered fining Henry Haywood $1,500 for these violations of Section 289.129(1)(m), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1988. COPIES FURNISHED: Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Mr. Henry L. Haywood 611 Northeast 39th Street Pompano Beach, Florida 33064 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Courtesy copy to: Mr. Steve Deinma AAA Insulation 1900 Australian Avenue Rivera Beach, Florida 33404
