The Issue Whether or not, between the periods of January 1976 and August 1977, the licensees or their agents, servants or employees allowed the license premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Whether or not, between the periods of January 1976 and August 1977, Ulysses Brown, the licensee and/or operator of the licensed premises had been convicted of letting the premises for prostitution and keeping a disorderly place, thereby violating Section 509.261(4)(a), Florida Statutes.
Findings Of Fact At all times material to the notice to show cause, Alma Mae Young and Ulysses Brown were the holder of license No. 23-7079H held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. This license was held to do business as Young's Rooming House, located at 7000 N.W. 21st Avenue, Miami, Florida. The facts in this case show that on October 23, 1976, Officer Otis Chambers, of the Dade County Public Safety Department, Dade County, Florida, went to the licensed premises known as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida. At that time, Officer Chambers was operating in the capacity of an undercover plainclothes officer investigating vice matters. He was in the company of a prostitute and when he approached the desk in the licensed premises, he spoke with the licensee, Ulysses Brown. In the conversation with Mr. Brown, he identified the woman in his company as being a prostitute, as shown by the remarks to Brown, and Brown acknowledged this information and rented a room to the officer. Subsequent to the events that transpired in the conversation between Officer Chambers and the licensee Brown, Brown was arrested and charged with violations of Section 796.06, Florida Statutes, which pertains to renting space for prostitution and with a violation of Section 796.07(2)(c), Florida Statutes, which is an allegation of receiving, offering or agreeing to receive, any person into any place, structure, building or conveyance with the purpose of prostitution or permitting any person to remain in those locales for such purpose. The licensee was found guilty of both offenses and placed on a period of probation for six months. Evidence of this finding by the Court may be seen as Exhibit No. 4 admitted into evidence. It was also shown in the course of the hearing that a number of complaints have been made by neighbors who live in the area of the licensed premises, to the effect that the licensed premises was a place in which prostitution was occurring; The comment was also made by these individuals that men and women were seen in the licensed premises who were not wearing clothes. The opinions were testified to by Officer John Wilson of the Dade County Public Safety Department who had spoken with a number of the residents of the area where the licensed premises is located. Although Ulysses Brown has claimed that he is no longer involved with the licensed premises, a recent inspection by Agent John H. McKinnon of the Division of Hotels and Restaurants reveals that Ulysses Brown is still working in the licensed premises. According to Brown, and in keeping with what the agent actually observed about the licensee's intention, Brown is to work and take care of the licensed premises and Young is to be the owner. Based upon the facts as reported, the Petitioner has brought two charges in the notice to show cause. The first charge alleges that between the periods of January 1976 and August 1977, the licensees, their agents, servants or employees, allowed the premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Section 509.032, Florida Statutes, states the duties of the Petitioner in the following language: 509.32 Duties.- (1) GENERAL.- The division shall carry out and execute all of the provisions of this chapter and all other laws now in force or which may hereafter be enacted relating to the inspection or regulation of public lodging and public food service establishments for the purpose of safe- guarding the public health, safety, and welfare. The division shall be responsible for ascertaining that no establishment licensed by it shall engage in any misleading advertising or unethical practices as defined by this chapter and all other laws now in force or which may hereafter be enacted. The division shall keep accurate account of all expenses arising out of the performance of its duties shall file monthly itemized statements of such ex- penses with the Department of Banking and Finance together with an account of all fees collected under the provisions of this chapter. A reading of this paragraph of this section leads to the conclusion that its purposes are to create the authority in the Petitioner to implement regulations to enforce the provisions of the overall Chapter 409, Florida Statutes. It is not read to be a substantive law which would empower the Petitioner to take action based upon the language of that section per se. Therefore, an violation of Section 796.07, Florida Statutes, would not promote the right to take action against the licensees under Section 509.032, Florida Statutes. The second count in the notice to show cause pertains to an allegation that between the periods of January 1976 and August 1977, the licensees and/or the operator, and in this instance that person is Ulysses Brown, has been convicted for letting the premises for prostitution and keeping a disorderly place which is in violation of Section 509.261(4)(a), Florida Statutes. That provision of the statutes reads as follows: 509.261 Revocation or suspension of licenses; fines; procedure.- (4)(a) Any person interested in the operation of any such establishment, whether owner or operator, has been convicted, within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in narcotics, or any other crime involving moral turpitude. The term "convicted" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. As stated before, Ulysses Brown, one of the licensees, was found guilty of Sections 796.06 and 796.07(2)(c), Florida Statutes. Those violations were established through an entry of the judgment finding the licensee guilty on January 20, 1977. That finding was reached within five years of the date of the action for suspension or revocation. This finding by the Court, coupled with the continued involvement by Ulysses Brown in the operation of the licensed premises and the background problems which have been prevalent in the licensed premises, would justify action being taken against both licensees, to-wit, Alma Mae Young and Ulysses Brown. The action spoken of was the right of action under Section 509.261(4)(a), Florida Statutes, and is the right of direct action against Ulysses Brown and a right of indirect action against Alma Mae Young for her knowledge, negligence or lack of due diligence in the operation of the licensed premises.
Recommendation It is recommended that the license held by the Respondents Alma Mae Young and Ulysses Brown to trade as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida, license No. 23-7079H be revoked. DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation 725 South Bronough Johns Building Tallahassee, Florida 32304 Alma Mae Young Ulysses Brown Youngs Rooming House 7000 N.W. 21st Avenue Miami, Florida
The Issue The issues in this case are whether each of two establishments is an unlicensed public lodging establishment, in violation of Subsection 509.241(1), Florida Statutes (2001), and, if so, whether the smoke detector and exit sign in one establishment were inoperable on October 31, 2003, and January 5, 2004, in violation of Florida Administrative Code Rules 61C-1.004(5) and (10) and 61C-3.001(7).
Findings Of Fact Petitioner is the state agency responsible for regulating and inspecting public food service establishments as defined in Subsection 509.013(5), Florida Statutes (2001). Mr. Michael Diffley (Diffley) is the managing owner of Respondent, JOXC Investments, LLC (JOXC). JOXC owns and operates the Palm Hotel (the Palm) and Grants Rooming House (Grants). The Palm and Grants are located, respectively, at 1425 8th Street and 2727 Washington Court, Sarasota, Florida 34235. Petitioner inspected the Palm on September 4, 2001, and February 27, 2002. On April 2, 2002, Petitioner filed an Administrative Complaint against the Palm alleging that the Palm was an unlicensed public lodging establishment in violation of Subsection 509.241(1), Florida Statutes (2001). Diffley requested an administrative hearing on April 23, 2002. Petitioner did not refer the request for hearing to DOAH until April 19, 2004. Diffley argues, in relevant part, that the failure to refer the matter to DOAH for more than two years bars the proposed disciplinary action. The Conclusions of Law address Diffley's defense. Petitioner inspected Grants on September 17 and October 31, 2003, and on January 5, 2004. On February 6, 2004, Petitioner filed an Administrative Complaint against Grants and JOXC alleging that Grants was an unlicensed public lodging establishment, in violation of Subsection 509.241(1), Florida Statutes (2001), and that a smoke detector and exit sign in Grants were inoperable on October 31, 2003, and January 5, 2004, in violation of Florida Administrative Code Rules 61C-1.004(5) and (10) and 61C-3.001(7). Diffley requested an administrative hearing on April 7, 2004. Petitioner referred the request for hearing to DOAH on May 18, 2004. Diffley does not oppose the second disciplinary action on the basis that the action is time barred. DOAH originally assigned both disciplinary actions to ALJ William F. Quattlebaum. ALJ Quattlebaum granted Petitioner's motion to amend the Administrative Complaint against the Palm Hotel to name Diffley and JOXC as respondents and subsequently consolidated the two disciplinary actions. The smoke detector and exit sign in Grants were inoperable on the dates alleged in the Administrative Complaint. Neither the Palm nor Grants was licensed as a public lodging establishment on the dates in issue. The remaining factual issue is whether either establishment was a public lodging establishment, defined in Subsection 509.013(4)(a), Florida Statutes (2001), that was required to be licensed pursuant to Subsection 509.241(1), Florida Statutes (2001). The evidence was less than clear and convincing that JOXC rented to guests at either the Palm or Grants more than three times in a calendar year for periods of less than 30 days or one calendar month. JOXC rents rooms to guests pursuant to written residential leases for more than six months. In practice, most guests at both establishments are transients and do not comply with their leases. The guests are low income earners or living on public assistance. Many have drug or alcohol problems. However, JOXC has been required to conduct formal eviction procedures against one former guest. The evidence was clear and convincing that JOXC holds the Palm and Grants out to the public places that are regularly rented to guests within the meaning of Section 509.013, Florida Statutes (2001). The name of each establishment represents to the public that it is either a hotel or rooming house. With the exception of one formal eviction, JOXC has regularly operated each establishment as a hotel or rooming house. The occupational license from the City of Sarasota for each establishment authorizes each establishment to operate as a rooming house, motel, or hotel. JOXC is the operator of each establishment within the meaning of Subsection 509.013(2), Florida Statutes (2001). Subsection 509.241(2), Florida Statutes (2001), requires JOXC to apply for and receive a license for each of the establishments. However, Subsection 509.241(2), Florida Statutes (2001), requires each establishment be a licensee. As the managing owner of JOXC, Diffley is a proper party to this proceeding, but is not subject to the requirements of Subsections 509.241(1) and (2), Florida Statutes (2001), as either a licensee or operator. It is undisputed that Grants has no prior disciplinary violations. The Palm has prior disciplinary violations, but those violations are not for failure to maintain a license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the operator and each licensee guilty of committing the violations alleged in each Administrative Complaint; imposing severable fines of $1,000 and $2,550, against the Palm and Grants, respectively; requiring the operator and each establishment to forthwith obtain an appropriate license; and dismissing the charges against Diffley. DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of August, 2004. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Michael Diffley Palm Hotel 3409 Prudence Drive Sarasota, Florida 34235 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent was first licensed by the State of Florida to operate an adult congregate living facility accommodating four residents on February 11, 1980, under license numbered 074800940FS. This license was renewed, for three residents, due to a zoning problem, in April, 1981, and again in April, 1982. This latest license is valid through April 10, 1983. On October 22, 1980, a representative of the Orange County Health Department visited the facility and, in the report dated November 14, 1980, listed the following major discrepancies: (a) roach infestation--thorough extermination needed; (b) sink drain is leaking--wood in bottom of sink cabinet is rotting--wall behind stove needs repair; and (c) refrigerator not holding 40 degrees Fahrenheit. Mrs. Helen L. Kessler, a program specialist with the Petitioner, visited the facility on October 27, 1980. Her report, which was furnished to Respondent, reflected several deficiencies, including: (a) failure to provide chest X-ray within 90 days of admission and records thereof kept; (b) no contract of financial arrangements kept in resident's personal file; (c) insufficient supervisory personnel for residents; (d) records not properly maintained; (e) no liability insurance; and (f) no nutrition plan or menus prepared a week in advance. A follow-up visit was conducted by Mrs. Kessler on December 18, 1980. Several of the deficiencies noted on the first visit were found to be uncorrected, such as: (a) the failure to have the chest X-ray on file; (b) financial records not properly kept; (c) no proof of liability insurance; and (d) no dated menus planned in advance and kept on file for six months. Some additional discrepancies were also noted, such as: (a) insufficient food supply; (b) noted health department violations; and (c) noted fire department deficiencies. These latter three deficiencies were noted as being corrected in the Provider's Plan of Correction furnished by Respondent on April 17, 1981. Prior to the April 1980 relicensing, on March 16, 1982, Ms. June Bryant, who, had taken over from Mrs. Kessler, went to the facility for a follow-up visit. At least four deficiencies previously identified were again noted. These were: (a) financial records not properly kept; (b) menus were not prepared in advance; (c) no chest X-ray on file; and (d) no admission and discharge register, personal information forms, or contracts. Several new deficiencies were identified, including: (a) no written disaster plan or evacuation agreement; (b) no written and acknowledged description of volunteers' duties; (c) no CPR course taken; (d) no Resident Bill of Rights posted; (e) no accident records kept; (f) no complete physicals on residents; and (g) need complete food service management course. On the basis of the written statement of corrections by Respondent, Ms. Bryant interposed no objection to relicensing, which took place on April 17, 1982. As a result of a complaint received regarding meals served at the home not being on time or adequate, Ms. Bryant again visited Respondent's facility on June 2, 1982. At this time, she found that menus were still not planned completely at least one week in advance, dated, posted, changed when required, and kept for three months. This finding was memorialized in a letter to Respondent dated June 8, 1982. Ms. Bryant made a follow-up visit to the facility on July 7, 1982, and found Respondent was not there. She left word with the caretaker for Respondent to call, but Respondent did not call as requested. On October 5, 1982, as a result of a complaint of abuse filed on September 28, 1982, Ms. Bryant, in the company of Arin Meiring, a Social and Rehabilitative Services counselor with the Department of Health and Rehabilitative Services, again visited the Respondent's facility to inquire into these complaints. Ms. Meiring's report reveals incidents of neglect of all residents, lack of sufficient food, lack of supervision, and complaints of oral abuse from three of the four residents, but from the fourth, an 83-year-old woman, very little complaint at all. This latter resident says she has gained weight since living in the facility and the other complainants are just "picky people." Ms. Meiring's personal examination of the refrigerator showed less than one-half gallon of milk, no fruit or fruit juice, and little food, which she felt was significant considering the number of people living there. On this same visit, one resident threatened to run away if he was not taken out of the home, and another pleaded to be taken out. As a result, these two were moved voluntarily on October 6. All four were offered removal. One lady wanted to stay, and the stroke victim, the private resident, had to talk with his family. In that regard, though there were four residents in the home, three placed there by the Petitioner and the fourth on a private arrangement with Ms. Bain, the license under which the facility is operated permits only three. In addition to Ms. Meiring's report of October 13, 1982, Ms. Bryant prepared her own report to the District Legal Counsel on October 7, 1982, outlining the repeated deficiencies observed. Ms. Bain categorically denied all the allegations made against her regarding the interview with Ms. Meiring at the time of her visit. She said that when meals are done, she always asks the residents if they had enough to eat. If they say no, she says she gives them more. As to the admission and discharge records, only one, where she forgot to put the date of discharge down, was in error, she says. Though she has now taken two CPR courses, one at the Red Cross in December, 1982, and one at Howard Johnson's, she could not produce certificates of completion. She is also taking a home nursing course at the Red Cross. She also contends that when she is there, her niece Angela, 18, a student at Valencia Community College, is there, and she is also assisted at times by neighbors and her 14-year-old granddaughter. As a result, the residents are never left totally alone. With regard to the stroke victim who is there as a private resident, he was required to do for himself at the request of his physical therapist. Because of the meddling by one of the other residents, a lady, the victim was not properly progressing, and the therapist does not come any more. Ms. Bain admits that at the time alleged in the Complaint, she was not planning her menus in advance as required, but now she is. She denies verbally abusing her clients and would always talk with them about their problems when she could. She would try to take them where they wanted to go and, in one case, would take a resident as far as Apopka to visit his wife. After a thorough review of all the evidence pertinent to this conflict, I find that there was periodic neglect of the residents by Ms. Bain. Neighbors and a 14-year-old granddaughter are not sufficient supervision for three octogenarians. Verbal abuse is not proven. The refrigerator's contents on the unannounced visit shows the skimpiness of the food provided. Though Ms. Bain has now met the requirement of a CPR course, it was not met at the times in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license to operate an adult congregate living facility be revoked. RECOMMENDED this 25th day of April, 1983, in Tallahassee, Florida. COPIES FURNISHED: Gerry L. Clark, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street Suite 912 Orlando, Florida 32801 ARNOLD H. POLLOCK 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 25th day of April, 1983. Ms. Barbara Bain 4000 West Jefferson Street Orlando, Florida 32805 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaints and Election of Rights forms to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s license is SURRENDERED. If it has not done so, the Respondent shall promptly return its license certificate back to the Licensure Unit. 6. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 7. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 8. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent Filed March 10, 2015 3:03 PM Division of Administrative Hearings should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 9. The owner/operator, Atakelte Admasu will never hold or own, directly or indirectly: any AHCA license; any type of entity that holds an AHCA license; any building or physical plant that operates as an AHCA licensee; or be a controlling interest, officer, board member, employee, volunteer, manager, director, or administrator of an AHCA licensee. 10. Administrative fines of $52,834.79 are imposed on the Respondent, but STAYED in accordance with the terms of the Settlement Agreement. : ORDERED at Tallahassee, Florida, on this_/2 day of Arathi. 2015. Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc eet this Final Adan eb served on the below-named persons by the method designated on this Wea my of , 2015. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Anne Avery, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Robert Dickson, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Andrew B. Thornquest, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Atakelte Admasu, Owner/Administrator Agnes Street Home for the Elderly Agency for Health Care Administration 1346 Agnes Street (Electronic Mail) Jacksonville, Florida 32211 (U.S. Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Francis Jerome Shea, Esquire Counsel for Respondent 644 Cesery Boulevard, Suite 250 Jacksonville, Florida 32208 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed 3 provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
