Findings Of Fact The Petitioner is the Department of Health and Rehabilitative Services. The Respondent is Elizabeth Joseph, licensed at all times pertinent to these proceedings to operate Jas Manor, an adult congregate living facility in Miami, Florida. Petitioner's employee, Elizabeth Baller, conducted an inspection of the Respondent's facility on September 18, 1986, and discovered seven persons in residence. This number of individuals exceeded the licensed capacity of Respondent's facility by one person. Ms. Baller recited the initials of those residents present in Respondent's facility on that date. Respondent's composite exhibit number 1, consisting of what are alleged to be copies of admission and discharge records, corroborates Ms. Baller's finding. The Respondent was not present at the facility at the time of this inspection. The failure of the Respondent to limit the capacity of the facility to no more than six residents posed a potential threat to the well-being of the residents. The existence of the deficiency finding was discussed with the Respondent by Baller via telephone on September 26, 1986. Ms. Baller did not visit Respondent's facility on September 24, 1986 and is without any direct personal knowledge that the number of residents in the facility on that date exceeded the licensed capacity. In the absence of such direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to the existence of any deficiency of the licensed facility on September 24, 1986. Petitioner exhibit number 1 does not conform to the statutory requirements for a class III deficiency citation as specified in section 400.419(3)(c), Florida Statutes, in that the exhibit fails to set forth the time within which the deficiency is to be corrected. Ms. Baller conducted a follow up visit on November 21, 1986, which, she contends, revealed seven residents in the facility, and a continuation of the violation cited previously in September. This contention of Ms. Baller is not supported by the weight of the evidence. Respondent's denial of the continuation of the deficiency at that time is supported by the testimony of Christine Sassone who regularly visits the facility on behalf of the church attended by her and Respondent. Ms. Sassone works with the residents of Respondent's facility, teaching arts and crafts there every evening, Monday through Friday, from 3:30 or 4 P.M. until 8:30 or 9:00 P.M. She was present at the facility on September 18 and November 21, 1986. She attests that there were only six residents present on either occasion. It is her testimony that individuals in excess of the licensed capacity on both of the dates in question may have been visitors from a neighboring facility known as the "Vet's Nest" which abuts Respondent's property. While discounting Sassone's unsupported testimony regarding the number of residents present on September 18, 1986, her testimony and that of the Respondent establish the fact that only six residents were present at the time of the follow up visit by Baller. Notably, Respondent's exhibit number 1 which supported the Petitioner's finding of seven residents in Respondent's facility on September 18, 1986, corroborates the testimony of Respondent and Ms. Sassone establishing that such deficiency was cured by November 21, 1986. The evidence fails to establish that the violation of Respondent discovered on September 18, 1986, was a repeat offense. It is found that the offense was not a repeat offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a final order finding the commission of a class III violation by Respondent, but assessing no civil penalty for the violation. DONE AND RECOMMENDED this 11th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in findings 2 and 3. Included in finding number 3, except for the last sentence relating to the visit of November 21, 1986. This sentence is rejected as not supported by the weight of the evidence. Included in finding number 3 and 9, except for the last sentence which is rejected. Rejected as unnecessary. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 N.W. 167th Street Miami, Florida 33014 Elizabeth Joseph Administrator Jas Manor 645 N.E. 131st Street North Miami, Florida 33161 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Serviced 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, Warren Lodge, is licensed to operate Paskow Lodge Retirement Residence, 5821 N.W. 28th Street, Lauderhill, Florida as an Adult Congregate Living Facility. The Respondent, Department of Health and Rehabilitative Services, conducted an administrative inspection of Paskow Lodge Retirement Residence on February 2, 1985. At the conclusion of the inspection, the Respondent was given written notice of a list of deficiencies noted during the inspection. The Respondent was given until April 5, 1985 to correct the deficiencies. On September 12, 1985, the Petitioner conducted a follow-up survey of Paskow Lodge Retirement Residence. Although several of the deficiencies previously cited were corrected, many of them had still not been corrected. DEFICIENCIES PREVIOUSLY CITED ON FEBRUARY 2, 1985, AND UNCORRECTED ON SEPTEMBER 12, 1985 The Respondent failed to keep on file in the facility up-to-date daily records for residents who received supervision of self administered medications. Respondent allowed medications to be administered by unlicensed staff members during evening hours. Respondent failed to arrange exits remote from each other and in such a manner as to minimize any possibility that more than one exit might be blocked by any one fire or emergency. Respondent failed to document that therapeutic diet service was being provided although at least one facility resident had a physician's order for a 1500 calorie diabetic diet on file. Respondent failed to demonstrate that menus were planned in accordance with the recommended dietary allowances established by the Food and Nutrition Board National Research Council. Adequate amounts of meats, fruits, citrus, vegetables, milk and other foods were not specified on the menu. Respondent failed to conduct matters pertaining to food service in accordance with Chapter 10D-13, F.A.C., and Chapter 10A-5.20(m), F.A.C. in that: miscellaneous food items were stored on the floor; clothing and shoes were stored with food; The Kenmore reach-in-refrigerator/freezer had wet towels on the interior bottom shelf and outside base of unit, the thermometers registered a temperature of 60 degrees Fahrenheit instead of 45 degrees Fahrenheit or below, and 45 degrees Fahrenheit instead of zero degree Fahrenheit or below for the refrigerator and freezer respectively and the unit kickguard was missing; an Edlund can opener, blade and base were grossly soiled; dumpster doors were left open; plastic beverage tumblers were stacked and stored wet; the restroom next to the dining room was not provided with paper towels; documentation was not proved to show that food service staff were free of communicable disease; sanitation inspection reports on file did not document correction of deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a fine in the amount of $1,087.50 be assessed against Petitioner. In addition, it is RECOMMENDED that the Petitioner be allowed to make five (5) monthly installment payments of $180 and a final payment of $187.50. DONE and ORDERED this 8th day of April 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of April 1987. COPIES FURNISHED: Leonard C. Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. Second Avenue, Suite 1070 Miami, Florida 33128 Amy Jones Director Office of Licensure and Certification 2727 Mahan Drive Tallahassee, Florida 32302 Warren Lodge Paskow Lodge Retirement Resident 5821 N.W. 28th Street Lauderhill, Florida 33313 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 3239-0700
Findings Of Fact Respondent corporation owns and operates The Ambrosia Home (the Home), a nursing home in Tampa, Florida. Ella Mae Smith, the sole stockholder and the chief executive officer of the corporation, worked as nursing home administrator for the Home from January 1, 1976, through April 21, 1976. Ms. Smith, who is a registered nurse, has been associated with the Home since 1962. On April 22, 1976, Willard Roth began as the Home's administrator, a job he kept through December 31, 1976. In January of 1976, respondent opened a 23 bed addition. Until Mr. Roth's arrival, Ms. Smith worked every day from seven in the morning till seven in the evening, except Saturdays and Sundays when she worked from seven in the morning till three in the afternoon. After Mr. Roth took over as nursing home administrator, Ms. Smith only worked eight hour days although she came back nights occasionally to look in on patients; she stopped going to get supplies for the Home herself and began sharing with Mr. Roth responsibilities for hiring and firing and for finances. For the first three quarters of 1976, respondent employed Judith Irene Roberson as a bookkeeper and secretary at the rate of three dollars an hour. Ms. Roberson is Ella Mae Smith's daughter. For the final thirteen weeks of 1976, Ms. Roberson worked as activities' director for respondent at the rate of three and a half dollars an hour. In both positions, Ms. Roberson worked overtime without pay. Because of this and because of her work for respondent in various capacities in 1970, 197, 1972, 1973, 1974 and 1975, she received a nine thousand dollar ($9,000.00) bonus in 1976. Ms. Roberson began working for respondent in July of 1970. In January of 1976, respondent received payments from petitioner for November and December of the preceding year. This money was used, in March of 1976, to open a savings account at First Federal of Tarpon Springs. In October of 1976, part of the money in the First Federal account was used to open a savings account at the Barnett Bank of Tampa. At no time during 1976, did the balance in the First Federal account fall below thirty-nine thousand, three hundred ninety-four dollars and seventy-six cents ($39,394.76). At no time during 1976, did the balance in the Barnett account fall below twelve thousand nine hundred sixty-four dollars and fifty-one cents ($12,964.51). The following year respondent used the money to pay back taxes, to pay bonuses and for other business purposes. On April 1, 1975, Ms. Smith acquired from respondent corporation the property on which the Home is located. During the year 1976, Ms. Smith leased the property back to the corporation at an annual rent of sixty-thousand dollars ($60,000.00). Rental payments under this agreement were subject to a four percent sales tax. At the close of 1976, there remained owing to Ms. Smith accrued bit unpaid rent. The corporations held a note from Ms. Smith during the year 1976, which she had given as partial payment for the property. In addition, Ms. Smith was indebted to the corporation for mortgage payments it had made on her behalf, aggregating thirty-five thousand six hundred ninety-seven dollars ($35,697.00). During the year 1976, Ms. Smith drove a 1975 Buick to and from work and used the car for other personal purposes. In addition to the personal use she made of the car, she used it to take resident of the Home on picnics, to entertain them in other ways, to transport them to a doctor's office and sometimes to take them to buy clothes. In operating the Home, she used the car for other errands: taking curtains to be cleaned and retrieving them; going shopping for fabric; and weekly trips to a Kwik-Chek store for housekeeping and other supplies. Fuel and maintenance expenses in the approximate amount of eleven hundred dollars ($1,100.00) were incurred in the operation of the automobile during 1976. No records were kept to reflect what fraction of the car's use was personal to Ms. Smith, however. Whenever Ms. Smith purchased supplies for the Home at the Kwik-Chek store, she paid with a check drawn on a Home account. In addition to housekeeping supplies, she sometimes bought Band-Aids and food on these trips. No records were kept to reflect just what was acquired on each trip. According to respondent's records, housekeeping supply expenses aggregated four thousand five hundred sixty-four dollars ($4,564.00) for 1976, and approximately forty- five hundred dollars ($4,500.00) for 1975. During 1976, six hundred dollars ($600.00) were reported stolen from petty cash in two accounts of which respondent had control. Respondent incurred certain legal and advertising expenses aggregating nine hundred fifty dollars ($950.00) in i976. Petitioner reimburses medicaid providers like respondent for a portion of certain expenses they incur in caring for eligible patients. In addition, petitioner's payments to medicaid providers include a return of approximately ten percent to medicaid providers on net assets devoted to the care of eligible patients. Respondent was slated to be audited by petitioner during 1977, in accordance with federal regulations prescribing such audits for each medicaid provider at lease once every three years. Petitioner performed its audit of respondent for the year 1976 earlier in 1977 than it would have otherwise, at the request "of HRS counsel because of a lawsuit that Ambrosia Home" (T48) brought against petitioner. Jesus A. Martinez, an auditor II in petitioner's employ, performed the audit of respondent, which was subsequently reviewed by Messrs. Roark and Conners, and possibly by Mr. Powell, all of whom are also employees of petitioner. As a result of the audit, petitioner proposes to disallow certain expenses claimed by respondent. These include sales tax on rent paid by respondent to Ms. Smith; portions of salaries respondent paid Ms. Smith and Ms. Roberson; petty cash reported stolen; checks to Kwik-Chek in excess of fifty dollars ($50.00), aggregating two thousand five hundred sixty-seven dollars and seventy-eight cents ($2567.78); and expenses related to the 1975 Buick, viz., interest on money borrowed to acquire it, an allowance for depreciation, insurance, taxes, licenses and operating expenses. Petitioner originally proposed to disallow certain professional fees, but indicated after the hearing that it would allow them. On advice that has since been rejected, respondent did not originally claim depreciation and operating expenses for the automobile. Similarly, respondent did not originally include the value of the automobile in computing the equity on which its return should be calculated, but took the contrary position in these proceedings. Petitioner proposes to disallow the value of the automobile and, as a result of the audit, to disallow certain other items respondent included in computing its equity capital. These include funds drawing interest in saving accounts far more than six months and Ms. Smith's obligations to respondent. On the other hand, petitioner included in equity capital the unpaid rent respondent owed Ms. Smith, even though respondent failed to include this item in its equity calculations. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner allow the entire salary respondent paid Ms. Smith in 1976, as a reasonable cost. That petitioner allow the salary respondent paid Ms. Roberson in 1976, as a reasonable cost, less and except seven thousand three hundred seventy dollars ($7,370.00). That petitioner disallow and exclude all other disputed items. DONE and ENTERED this 16th day of October, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraphs three and four of petitioner's proposed findings of fact are consistent with the evidence adduced at the hearing but are not strictly relevant. Paragraph five of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraphs six and seven of petitioner's proposed findings of fact are actually proposed conclusions of law. Paragraph one of respondent's proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not establish when cost reports for the year 1976 were submitted. Paragraph two of respondent's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the last clause thereof which was not established by the evidence. Paragraph three of respondent's proposed findings of fact has been adopted, in substance, insofar as relevant. Paragraphs four and five of respondent's proposed findings of fact are consistent with the evidence adduced at the hearing but are not strictly relevant. Paragraph six of respondent's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the final sentence thereof, which is not supported by the evidence. Paragraphs seven and eight of respondent's proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraphs nine and ten of respondent's proposed findings of fact are actually proposed conclusions of law. COPIES FURNISHED: Ellen Ostman, Esquire Department of HRS 4000 West Buffalo Avenue Tampa, Florida 33614 Allan M. Dabrow, Esquire Suite 1300 1845 Walnut Street Philadelphia, Pennsylvania 19103 Mr. David Ganley Supervisor of Nursing Home Receivables Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 Mr. Carl McBride Department of Accounting Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 The Ambrosia Home 1709 Tallaferro Road Tampa, Florida 33609 W. Kirk Brown, Esquire 313 Williams Street Suite 10 Post Office Box 4075 Tallahassee, Florida 32303
The Issue The issue in this case is whether Petitioner's request for exemption from disqualification from employment in a position of trust should be granted.
Findings Of Fact AHCA is a state agency required to conduct background screenings for individuals who provide certain types of healthcare related services under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner is seeking to become owner of a licensed nurse registry for pediatric and special needs care. As such, Petitioner is required to have a background screening check pursuant to section 408.809. Petitioner is interested in the field because his daughter was born with several disabilities. After completing Petitioner's background screening, Petitioner's 2011 disqualifying felony criminal offenses of owning, operating, or maintaining an assisted living facility without a license were identified. On March 6, 2019, Petitioner submitted a request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). In Petitioner's exemption package, he listed his work history, which included the following employment: Home Reach, LLC, from April 2013 to October 2013; Five Star Home Health from October 2013 to March 2014; unemployment from March 2014 to August 2014; Home Reach, LLC, from August 2014 to August 2018; and a leave of absence from Home Reach, LLC, starting August 2018. Petitioner also detailed his plans to comply with AHCA's laws and regulations in his exemption package. He explained that he has retained a consultant, Elisabeth Jean-Baptiste ("Jean- Baptiste"), to assist him. She is the director of the FEDEN Healthcare Education Institute, an entity that provides continuing legal and regulatory education in the healthcare field. Petitioner included in his exemption package documentation that he completed a 12-hour Adult Family Care Home course, which covered the rules and regulations for running a healthcare business. On May 15, 2019, as part of the exemption application process, Petitioner participated in a telephonic exemption hearing with AHCA. After the telephonic hearing and discussion, AHCA denied Petitioner's request for an exemption by letter dated May 30, 2019. Subsequently, Petitioner requested an administrative hearing. Disqualifying Offenses On May 26, 2011, Petitioner was arrested and charged with a two-count felony of operating, owning, or maintaining an assisted living facility without a license. Petitioner's criminal charges stem from him operating Heaven Sent Group Home, which he labeled "sober living" houses. At the two facilities Petitioner owned and operated, medication was distributed, and daily activities for the residents were performed without being licensed as an assisted living facility. On June 27, 2011, AHCA also charged Petitioner by Administrative Complaint in Case No. 2011001367 for operating Heaven Sent Group Home, which was the same unlicensed assisted living facility subject matter as the criminal Case No. 2011CF001679A. On or about September 20, 2011, Petitioner pled no contest in Case No. 2011CF001679A to the two felony counts of operating, owning, or maintaining an assisted living facility without a license. The court withheld adjudication and sentenced Petitioner to three years of probation, 100 hours of community service, court costs, and fines. On January 25, 2012, AHCA issued a Final Order in Case No. 2011001367, imposing a $99,000.00 fine for Petitioner's unlicensed activity. By letter dated October 2, 2013, Petitioner was notified that he completed his terms of probation and was no longer under the supervision of the Department of Corrections for Case No. 2011CF001679A. Hearing At hearing, Petitioner explained that he opened two facilities in 2007 to help the underprivileged. His residents included those that were released from incarceration or mentally ill and did not have place to live. He testified that most of his residents came from the courts or were referred by New Horizons. Petitioner denied receiving any AHCA notices sent to him regarding his operating the two unlicensed assisted living facilities prior to the 2011 cease and desist on Heaven Sent Group Home. Petitioner further claimed that he did not know he needed a license for the facilities he was running. Petitioner did admit that he was completely responsible for his wrongdoings and not being educated and aware of the rules and regulations regarding operating a group home or an assisted living facility. During the final hearing, Petitioner presented the testimony of Roshina Lakram, who testified that she knew Petitioner for 30 years and that he had been helping people struggling with drugs and mental illnesses with his sober living homes. Vanessa Risch ("Risch"), the health services and facilities consultant manager for AHCA's Background Screening Unit, testified at hearing that in making the decision to deny Petitioner's exemption, AHCA considered Petitioner's entire case file including exemption application, education and training records, personal letters of support, personal attestations, one employment reference letter, and Petitioner's explanations during the telephonic exemption hearing. AHCA concluded that Petitioner was not particularly candid during the May 15, 2019, telephonic hearing, because Petitioner failed to mention prior to and during the teleconference that he has the outstanding AHCA fine in the amount of $99,000.00 from his unlicensed activity from Case No. 2011001367. Although Petitioner had some positive letters of recommendation, his failure to be candid and honest in addition to his lack of effort to make any payments toward the outstanding AHCA fine was a major consideration in the denial of Petitioner's exemption. Risch testified that Petitioner failed to meet section 435.07(3)(a) and had not demonstrated by clear and convincing evidence that he was rehabilitated. At hearing, Petitioner also failed to readily admit that he owed the $99,000.00 fine to AHCA when testifying. First, Petitioner did not own up to currently owing the monies, then testified that maybe it happened while his daughter was in the hospital, and finally inquired about a payment plan. At the time of the hearing, Petitioner had not paid any amount towards the fine nor attempted to negotiate a payment plan agreement with AHCA to pay off the delinquent fine. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner was both credible and passionate in his testimony about his future and not wanting to work for other individuals for the rest of his life. He even testified that since it was America, he wanted his own. However, Petitioner failed to testify convincingly regarding the monies owed to AHCA. He was dismissive about his past instead of being honest and forthright regarding the outstanding $99,000.00. Such lack of candor and accurateness regarding the delinquent AHCA fine establishes Petitioner's ineligibility for an exemption from disqualification because he has not demonstrated by clear and convincing evidence that he has been rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency for Health Care Administration enter a final order upholding its denial of Petitioner's request for an exemption from disqualification for employment. DONE AND ENTERED this 10th day of October, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2019. COPIES FURNISHED: Chan Gobin 5839 Northwest Drill Court Port St. Lucie, Florida 34986 Lindsay Worsham Granger, Esquire Agency for Health Care Administration Building 1, Mail Stop 7 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue is whether Petitioner's application for an initial license to operate an Assisted Living Facility should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensure dispute, Petitioner, Fosset Home for the Elderly, seeks an initial license to operate an Assisted Living Facility (ALF) in Jacksonville, Florida. In a preliminary decision issued on June 8, 1999, Respondent, Agency for Health Care Administration (AHCA), denied the application on the grounds that on April 8, 1998, Petitioner's owner had "pled guilty to operating an unlicensed [ALF] and [was] placed on 24 months' probation," and that her probation conditions prohibited her "from operating or maintaining an [ALF]." Petitioner denied the allegations and contended that its owner had met all terms of probation; that its owner had not been adjudicated guilty of the charges; that the denial was based on "erroneous facts"; and that AHCA had abused its discretion. Petitioner's owner is Shirley I. Fosset, a certified nursing assistant. Although the record is not altogether clear, it appears that several years ago, perhaps in 1994 or 1995, she assumed ownership of a licensed ALF known as Barlow Community Home in Jacksonville, Florida. It is undisputed that while operating that facility, Fosset was not cited for failing to adhere to AHCA regulations. Because the prior owner would not keep the facility's building in good repair, however, Fosset decided to move to a new location when it came time to renew the license, and to seek a new license under her own name. While seeking a new license, she continued to "knowingly" operate an ALF after her old license had expired. Sometime during the first half of 1997, but prior to June 19, 1997, Fosset was advised by AHCA to obtain a license within ten working days or else be subject to prosecution. Fosset then filed an application for licensure on an undisclosed date, but it was deemed incomplete because it lacked a legible fire marshal's report; zoning verification; sanitation and inspection reports; and a completed assets, liabilities, and statement of operation form. There were also unpaid license fees. Although she later submitted a legible fire marshal's report and paid the fees, the application was never determined to be complete and was therefore denied. On February 26, 1998, an information was filed by the Duval County State Attorney against Fosset charging that on June 19, 1997, she was operating an unlicensed ALF in Duval County, a third degree felony. On April 9, 1998, Fosset pled guilty to the charge, and adjudication of guilt was withheld. She was placed on supervised probation for 24 months, and one condition of probation prohibited her from "operating and maintaining an adult living facility" during her probationary period. According to Petitioner, her term of supervised probation was terminated on April 30, 1999, or prior to the original two-year period, and this was not contradicted. If this is true, then the condition that she not operate an ALF during her probationary period has also expired. The state attorney's office notified AHCA of Fosset's guilty plea by letter dated April 24, 1998. After receiving the letter, AHCA issued an Amended Administrative Complaint against Fosset on June 8, 1998, charging her with operating an unlicensed ALF. The parties eventually entered into a Joint Stipulation on July 7, 1998, wherein Fosset agreed to pay a fine, and a Final Order was entered on August 21, 1998, accepting the stipulation. On an undisclosed date in 1998, Fosset filed a second application for licensure. This application was preliminarily denied on May 20, 1998, on the ground she had "pled guilty to operating an unlicensed ALF." When no request for a hearing was made, a Final Order confirming this action was entered by AHCA on July 1, 1998. A third application was filed by Petitioner with AHCA on April 28, 1999, by which she again sought an initial license authorizing the operation of a five-bed ALF at 1244 Edgewood Avenue, West, Jacksonville, Florida. On May 25, 1999, the application was denied under Section 400.414(1)(m), Florida Statutes, on the grounds Fosset had pled guilty to operating an unlicensed ALF, and the terms of her probation prohibited her from operating such a facility. On June 8, 1999, AHCA amended its earlier letter and added Section 400.414(3), Florida Statutes, as an additional statutory ground for denying the application. The latter statute authorizes AHCA to deny an application whenever an applicant has been denied an application within the preceding five-year period. This controversy followed. Petitioner concedes that she operated a facility without a license after being told to cease operations, but she did so only because she did not wish to "throw [her clients] out on the street," especially since none of them had other family or another facility in which to be placed. Despite being well- intentioned, Fosset nonetheless violated the law by continuing to operate without a license. Petitioner also points out that she has attempted in good faith on no less than three occasions to obtain a license. However, the first application was denied for technical reasons (incompleteness), and there is no record evidence that all of the missing items were ever submitted. Her last two efforts were properly rebuffed because Petitioner had continued to operate an ALF without a valid license. Finally, there is no dispute that Petitioner desires a license because she is truly committed to assisting elderly persons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order denying Petitioner's application for an initial license to operate an Assisted Living Facility. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of September, 1999. COPIES FURNISHED: William Roberts, Jr., Esquire 816 Broad Street Jacksonville, Florida 32202-4754 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
